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 confirmed upon their appeal to the High Court.

Lowndes, for the appellants. (The arguments upon the questions other than that of res judicata, upon which their Lordships judgment alone proceeded, are not reported.) The appellants were liable under the original mortgage decree and were not parties to the retrial; their names were included in the judgment by mistake. The appellants proper course was to apply for a review under s. 263 of the Civil Procedure Code, 1882. They are not, however, precluded from maintaining the present suit Pran Nath Roy v. Mohesh Chandra Moitra. (( 1897) I. L. R. 24 Calc. 546.) [Code of Civil Procedure, 1882, s. 244, was also referred to.]

De Gruyther, K.C., and Dube, for the first respondent. The appellants objections upon the application to make absolute the mortgage decree of September 22, 1902, and their subsequent appeal raised the same points as they now rely upon. They are precluded by s. 11 of the Code of Civil Procedure, 1908, from maintaining the suit Ram Kirpal Shukul v. Rup Kuari (( 1883) L. R. 11 Ind. Ap. 37.) Malkarjun Bin Shidramappa v. Narhari Bin Shivappa. (( 1900) L. R. 27 Ind. Ap. 216.) The circumstances of the case are similar to those in Haji Ashfaq Husain v. Lala Gauri Sahai. (( 1911) L. R. 38 Ind. Ap. 27.) Lowndes replied.

The judgment of their Lordships was delivered by

LORD SHAW OF DUNFERMLINE. This is an appeal from a decree of February 23, 1911, of the High Court of Judicature for the North-Western Provinces (Allahabad), which reversed a decree dated August 17, 1909, of the Court of the Additional Subordinate Judge of Gorakhpur. The Court of first instance allowed the plaintiffs claim. On appeal the claim was dismissed. The object of the present suit is, by its terms, declared to be threefold. But upon examination the substantial and only object is for a declaration in favour of the plaintiffs against the defendants to the effect that the plaintiffs are no party to a certain order which was made against them on September 22, 1902. Further declarations are asked that the decree is ineffectual, and null and void against them, and so forth. In substance, as has been said, the object of the present suit is for a declaration that a decree pronounced by a Court of competent jurisdiction on September 22, 1902, and bearing to apply to the present appellants, does not in fact apply to them.

The circumstances of the case are these. In 1884 Prag Dat Pande executed a mortgage over certain family property, of which he was himself manager, in favour of the predecessor in title of the respondents. He had two sons, Rajwant Prasad and Bhagwant Prasad. In 1897 a suit for sale under the mortgage, and directed against, inter alios, these three persons, was instituted. It was heard ex parte, and on April 80, 1897, a d