Judgement

Appeal from a judgment and decree of the High Court (February 23, 1911) reversing a judgment and decree of the Additional Subordinate Judge of Gorakhpur (August 17, 1909).

In February, 1909, the appellants and one Prag Dat, since deceased, instituted the suit against the first respondent, claiming a declaration that they were not parties to a decree made against them and the second respondent on September 22, 1902, that their names had been entered therein without jurisdiction, and that they were not bound by the decree. Alternatively they alleged that their names had been included in the decree by the fraud of the defendant. They asked that the decree be rectified by the exclusion of their names.

The defendant (first respondent) denied the fraud alleged, and pleaded that the suit was barred as res judicata under the Code of Civil Procedure, 1908, s. 11. The facts are fully stated in the judgment of their Lordships.

No evidence of fraud was given at the trial.

The High Court (Sir John Stanley C.J. and Banerji J.), reversing the decision of the trial judge, dismissed the suit, holding that the appellants were estopped by the mortgage decree absolute, which was subsequently