A.S. Sankara Pandia Thevar vs Syed Abdul Rahman Rowther

Rajamannar, C.J.—The, respondent (plaintiff) brought a suit for the recovery of a certain sum of money from the petitioner (defendant) find

obtained an ex parte decree On the 23rd of March 1950. The defendant subsequently filed a suit, O. S. No. 137 of 1950, in the Court of the

District Munsif of Tirunelveli for a declaration that the said ex parte decree was not binding on him and for an injunction restraining the plaintiff from

executing that decree.

It was held in that suit that by reason of the fraud of the plaintiff summons had not been served on the defendant and, therefore, the decree was

liable to be set aside. On that finding the suit was decreed. There was an appeal but the appeal was unsuccessful. The plaintiff thereupon filed two

applications, in effect seeking to have his suit restored and proceeded with. The petitions were ordered and the suit was revived. The above two

civil revision petitions seek to revise the order of the learned Judge.

The only question which falls for decision in these two petitions is whether the result of the decree in the suit filed by the defendant which was

later confirmed on appeal is that the plaintiff in the original suit would be entitled to have a fresh disposal of his suit. In my opinion it is not possible

nor desirable to lay down a general rule of universal application.

Each case would depend on the particular facts of the case, as for example, the nature of the findings in the later suit and the ground on which the

decree was held to be not binding on the defendant. If, in the subsequent suit by the defendant there is a finding that the plaintiffs claim was false to

his knowledge but fraudulently he had managed to obtain a decree, then, of course, there can be no question of reviving the suit.

That would be inconsistent with the finding which had become final as between the parties that the plaintiff''s claim was false. But there may be

cases where in the subsequent suit there is no adjudication on the merits but the decree is held to be not binding and liable to be set aside because

summons had not been properly served, -- may be on account of the fraud practised by the plaintiff.

In such cases it is obvious that the plaintiffs claim has really not been decided by any court. His claim has not been found to be false in the

subsequent suit. It seems to be extremely unreasonable to say that because the plaintiff procured a decree by a trick in not having the summons of

the suit served on the defendant, he should not be permitted to establish his case after his fraud had been discovered and the decree obtained by

him has been set aside.

Mr. S. Rajaraman relied strongly on an early decision of the Bombay High Court in --''Bhimaji v. Rakmabai'', ILR 10 Bom 338 (A). In that

case A filed a suit against B, in which ""a consent decree was passed. That decree was set aside in a subsequent suit brought by B on the ground

that it had been obtained by fraud and collusion between A and B''s agent, who had no authority to consent. Thereupon A applied to have his suit

restored to the file and reheard on the merits, contending that, the decree having been set aside, the suit remained undecided.

With great respect to the learned Judges, I am unable to agree with the principle laid down by them. The original decree in that case was a consent

decree. Once it was established in the later suit that there was no real consent, the basis of the decree had disappeared and the original decree

could no longer stand. With great deference to the learned Judges I cannot agree with the following observations:

When the applicant''s decree was set aside, it was not reversed.

I am unable to see how a decree can continue to exist when it has been set aside subsequently by a competent court in the presence of the parties

to the prior decree. No doubt, ordinarily a decree in a suit is set aside only by an appellate court. But the law does permit the defendant to have a

prior decree set aside say, on grounds of fraud. The result to my mind appears to be the same whether the original decree was set aside on appeal

or in a subsequent suit.

On the other hand I am in entire agreement with what was laid down by the Pull Bench of the Patna High Court in -- ''Nirsan Singh v. Kishuni

Singh'', ILR 10 Pat 516: AIR 1931 Pat 304 (B). It was there held that the question as to whether, when an ex parte decree in a subsequent suit is

set aside, the original suit in which that decree was obtained is revived or not depends upon the pleadings, the issues and the actual decision in the

subsequent suit. The general principle, the application of which would change according to circumstances, was thus set out by Jwala Prasad J.,

delivering the judgment of the Full Bench:

Thus, whereas the principal issue in the subsequent suit is the obtaining of the ex parte decree by fraudulent means, such as, suppression of

summons etc., the question as to whether the claim of the plaintiff in the original suit was false and fraudulent may be gone into as affording a motive

for the plaintiff in the original suit having stealthily obtained the ex parte decree against the defendant by preventing him from appearing in court and

exposing the falsity of the plaintiff''s claim.

The court might have gone into that question only incidentally, or it might have formed the subject-matter of a clear decision upon an issue raised

and tried between the parties. In the former case simply the ex parte decree is set aside and the parties are relegated to their former position and

the suit is restored and the plaintiff''s claim enquired into and disposed of in accordance with law.

If, on the other hand, the decree is set aside not only upon the ground of suppression of summons by fraud but upon the ground that the original

suit itself was fraudulent and the plaintiff''s claim was false, the suit cannot be restored and retried for the issue, whether the plaintiff in the original

suit had a right to obtain a decree against the defendant on the facts alleged in the plaint, has already been determined in the second suit and the

same question cannot be agitated in any suit, whether that suit in point of time was instituted before or was subsequently instituted.

Applying this principle to the present case, it is obvious that it was not decided in the later suit filed by the defendant that the plaintiff''s claim was

false.

The orders of the court below reviving the suit are right. The Civil Revision Petitions are dismissed, but in the circumstances, there will be no

order as to costs here and in the court below.