Idine Beary vs Ummathumma and Others

We think that we ought to follow the decisions of this Court in Rangammal v. Venkatachari 18 M.K 378 and Kondeti Kama Raw v. Nukamma

4 M.L.T. 331 which lay down that a decree of Court, though obtained by collusion in order to carry out a scheme of fraud cannot be treated as

nullity as between the parties to the decree-not only this, the Court ought not to permit any of the parties to such fraud and collusion to show that

the transaction upheld by the decree was not really what it purported to be and does not, therefore, bind hinu We are not prepared to follow some

of the observations in the judgment in Barkat-un-nissa v. Fazl Haq (1904) A.W.N. 25 which go to the length'' of stating that a person, who had

merely a hope of succession and no present legal right in the property affected by a collusive decree, is entitled to impeach that decree though he is

the heir and representative of one of the parties to the decree. (See also Bigelow on Fraud, page 91.)

The decree in Original Suit No. 71 of 1002 awarding the plaintiff possession of the plaint property is, therefore, binding on the 3rd defendant,

who is the heir of one of the parties to that suit, as held by the learned District Judge.

The next contention of the appellant (the 3rd defendant) is that the execution of that decree has become barred and that the plaintiff''s only

remedy as decree-holder under that decree was to execute that decree for possession and not to bring a separate suit for possession treating that

decree as a decree for possession and not as a declaratory decree. A decree-holder is not bound to obtain possession through Court if the

judgment-debtor gives up possession amicably. A that case the decree is satisfied and there is no cause of action to take out execution

proceedings in the suit. If the decree-bolder is dispossessed afterwards, his dispossession gives him a fresh cause of action and it is on that fresh

cause of action that this suit was brought.

Lastly, it is contended that the plaintiff never did get possession of the properties from his deceased mother (the judgment-debtor) and that the

District Judge''s finding to the contrary cannot be supported. The learned District Judge is, no doubt, mistaken in his assertion that it was not

disputed that defendants Nos. 1 and 2 originally attorned to the plaintiffs in 1905 Exhibit K."" The District Munsif found on the 3rd defendant''s

contention that Exhibit K was very recently manufactured to support the plaintiff''s case. There are, however, the documents D and J of which the

genuineness of Exhibit D seems to be conceded by the District Munsif, and the fact of the plaintiff and his mother having been thick friends, and the

fact that the plaintiff managed his mother''s affairs and was in actual possession even of her other properties for her. The general probabilities of the

case are also in support of the District Judge''s finding on the 3rd and 4th issues (which relate to the question of possession) and though it would

have been more satisfactory if the learned District Judge had given fuller and better reasons for his conclusion, we do not think that this is a case in

which should refuse to accept his finding of fact or to send it down for a fresh finding.

This second appeal is accordingly dismissed with costs.