A decree obtained by fraud can be impeached in collateral proceedings without setting aside the decree, but the failure to frame a specific issue on fraud can cause prejudice to a party and result in failure of justice.

1. THIS appeal from appellate decree is directed against the judgment and decree dated September 26, 1964 passed by Sri N. C. Dutt, Additional District Judge, Howrah in Title appeal No. 199 of 1964 whereby the judgment and decree dated March 31, 1962 made in Title Suit No. 6 of 1962 by Sri S. K. Roy, Subordinate Judge, 2nd Court, Howrah was affirmed.

2. ADMITTEDLY the suit property, being holding No. 95 B. Road, of mouza bamangachi, originally belonged to Sk. Khodan, Sk. Kalu and Kulsum Bewa. The plaintiff appellant claimed to have purchased the said property from the said owners by a registered Kobala dated June 23, 1954. It appears that before the said sale, there was a registered Bainapatra dated May 24, 1954 wherein the said Kulsum Bewa did not join. It has been alleged by the plaintiff appellant that because of the said fact, his father a legal practitioner, advised him to purchase the property in question in benami and accordingly the concerned sale deed was taken in the name of the plaintiff appellant's nephew Nani Gopal Das. It has also been alleged by the plaintiff appellant that after such purchase he paid rent to the landlord and constructed structures, inducted tenants therein and realised rents from them. It has been alleged that as Nani Gopal Das had lost his service, so since 1958 he took shelter in the plaintiff appellants' house and in his family but gradually the said Sri Das began to go astray being short of funds. The plaintiff appellant has alleged that for such conduct of the said Sri Das, he lost faith in him and brought Title Suit No. 3 of 1960 and obtained a decree. It has also been alleged that during the pendency of the said Title Suit No. 3 of 1960, the defendant respondent No. 1 got a Kobala executed in the name of his wife, the defendant respondent No. 2, although they had due knowledge of his possession and title. The plaintiff appellant has further alleged that subsequently the defendant respondents on february 2, 1960 and August 29, 1960 forcibly dispossessed his tenant Sri nani Gopal De and have raised new constructions by demolishing the existing ones. In the background of the facts as reproduced hereinbefore, the plaintiff appellant brought Title Suit no. 6 of 1962 in the Court of the Second subordinate Judge, Howrah on March 10, 1962 praying for recovery of possession and mesne profits @ Rs. 25/- per month being the rate of rent received from the tenant in question.

A joint written statement was filed contusing inter alia amongst others that the suit was bad for non joinder of necessary parties viz., the said Nani Gopal Das and his wife Bakul rani. In any event it was denied that tine purchase of the property was made in the benam of the said Nani Gopal das. The defendant respondents further contended that Bakul Rani, the wife of the said Nani Gopal Das herself made the purchase in the benam of her husband with her own money and built the house. It has further been alleged that such purchase and the said construction has been made by the said Bakul Rani out of her own money derived by the sale of her ornaments. It has also been alleged that on June 18, 1958 Nani Gopal Das executed a deed of relinquishment and on the same day his wife Bakul Rani executed a registered deed of agreement with the stipulation that she will not sell or dispose of the properties in question without the consent of the husband. It has been alleged that thereafter, by a registered deed dated January 12, 1960 executed by Nani Gopal Das and his wife Bakul Rani the defendant respondent No. 2 acquired her title to the property in question and before the actual sale there was an agreement dated january 6, 1960. The said defendant respondents claim to have paid rent and taxes since her purchase. In respect of Title Suit No. 3 of 1960 it has been alleged in the written statement that the plaintiff appellant fraudulently got the summons of Nani Gopal Das and Bakul Rani served upon his own father, who was also impleade