Durgamma and Others vs Kechammayya and Others

Ramesam, J.—The suit was brought by the junior members of an Aliyasanthana family for declaration that a decree obtained against certain

other members (including the two managers) is not binding on them. The plaintiffs were not parties to the former suit. The Courts below dismissed

the suit on the ground that the plaint disclosed no cause of action. The plaint made various allegations of fraud in connection with the execution of

the mortgage deed on which the former suit was laid but made no further specific allegations of fraud in the conduct of the former suit. In the cases

relied on by the Courts below Logadapathi Chinnayya Vs. Kotla Ramanna, and Gandi Appa Razu v. King-Emperor ILR (1919) M 330 : 1919 38

MLJ 194] the plaintiff in the last suit was a party to the prior decree and was bound by it unless the decree was obtained by fraud. Those cases

can apply to the present case only on the footing that the plaintiff, though not a party to the former suit, was represented in it by the 5th defendant

therein (Ejamanthi) and by the 3rd defendant therein (described as a manager along with the 5th defendant). Now it is clear that if the executants of

the mortgage document acted fraudulently and collusively in executing the documents and they were the defendants in the suit and allowed it to

proceed ex parte, they were only continuing the original fraud and there can be no new fraud to allege or prove. If the plaintiffs succeed in

establishing fraud and collusion in respect of the execution of the document, they have also succeeded in establishing that the non-defending of the

former suit is also fraudulent,--the fraud in the suit being merely a continuation of the original fraud. In the present case of the seven executants of

the mortgage document six (including the manager) were parties to the former suit (the seventh being dead). In such a case the plaint must be

construed as alleging fraud throughout from the execution of the document to the passing of the decree. It would be no doubt different, if the

defendants in the former suit were different from the executants of the mortgage. In such a case, the plaintiff ought to make a further allegation

about the conduct of the defendants in defending the suit such as that the defendants did not raise an obvious plea open to them or that the

executants of the document were not managers at the time--conduct showing gross negligence equivalent to fraud and collusion. An example of

such a case is Yusuf Sahib v. Durgi ILR (1907) M 447 : 17 MLJ 260. In the present case the plaint attributes initial fraud to the defendants in the

suit at the stage of the execution of the document. I do not think it necessary for the plaintiff to make this redundant allegation that the fraud

continued during the conduct of the suit. I think the plaint discloses a cause of action. The facts ought to be fully ascertained before the suit can be

disposed of. If the plaintiffs establish fraud in the execution of the mortgage the decree is equally vitiated by fraud and cannot bind the plaintiffs.

The decrees of the Courts below are reversed and the suit remanded for disposal according to law. Costs to abide the result. Court-fee in first

appeal and second appeal should be refunded to plaintiffs.