In order to set aside a decree on the ground of fraud, it must be shown that the fraud was practiced in relation to the proceedings in court and the decree must be shown to have been procured by practicing fraud of some sort upon the court. Additionally, a decree cannot be set aside merely upon the ground that it has been obtained by perjured evidence.

JUDGMENT

B.B. Ghose, J. - This is an appeal by the Defendant No. 1 against a judgments' and decree of the Subordinate Judge-reversing those of the Munsif. The plaintiff brought the suit to set aside a decree which was passed ex parte against him in Money Suit No. 200 of 1916 on the ground of fraud. In that case, the present plaintiff was the defendant. He was, it appears, served with proper summons; but on the date of hearing, he failed to appear in Court and the result was that a decree was passed ex parte against him. The plaintiff alleges that the claim for rent against him in the previous suit was entirely false and the decree was obtained against him on perjured evidence. On these allegations, he-went to trial. Several issues were framed in the trial Court of which the 5th issue was this:

Is the rent decree obtained by the Defendant No. 1 against the plaintiff fraudulent and one liable to be set aside?

2. In a careful judgment, the Munsif considered all the reported cases on the question as to whether the plaintiff was entitled to maintain the present suit for setting aside the previous decree on the ground alleged and came to the conclusion that a fresh suit by the plaintiff for setting aside the prior decree on that ground was not maintainable. On the question of fact also, the Munsif came to a decision in favour of the defendant. On these findings, he dismissed the plaintiff's suit. The plaintiff appealed against that decree and the Subordinate Judge-started his findings by observing.

The plaintiff can only succeed if he can prove that the defendant has practised fraud upon the Court in securing the decree complained of. To determine this, it is to be previously seen if the-claim in that rent suit was false and it was so known to the plaintiff of that suit.

3. Then the Subordinate Judge discussed the evidence and, on the facts, he came to a conclusion contrary to that of the Munsif and concluded his judgment in this way:

Plaintiff's (it should be defendant's) claim in the rent suit is thus false and she must have known it to be false. The decree in that suit was evidently obtained by practising fraud on the Court. The decree in the rent suit, in my opinion, cannot stand.

4. In that view, he decreed the appeal and allowed the plaintiff's suit. The defendant has appealed to this Court and the contention on her behalf is that the Subordinate Judge is wrong in his view that a suit for setting aside a previous decree is maintainable on the ground that it was obtained by false evidence, although the plaintiff in the previous suit might have known it to be false. In support of this contention, a number of cases have been cited by the learned advocate for the appellant. As there has been some conflict of decisions on this point, I think it is necessary to recapitulate them in some detail.

5. The first case which has been relied on by the appellant is the case of Mahomed Golab v Mahmnod Sulliman 1894] 21 Cal. 612. In that case, Sir Comer Petheram, C.J., in delivering the judgment of the Court, after referring to a number of decisions, observed as follows:

The principle upon which these decisions rest is that where a decree has been obtained by a fraud practised upon the other side by which he was prevented from placing his case before the tribunal which was called upon to adjudicate upon it in the way most to his advantage, the decree is not binding upon him, and that the decree may be set aside by a Court of justice in a separate suit and not only by an application made in the suit in which the decree was passed to the Court by which it was passed, but I am not aware that ft has ever been suggested in any decided case, and, in my opinion, it is not the law that because a person against whom a decree has been passed alleges that it is wrong and that it was obtained by perjury committed by, or at the instance of, the other party, which is, of course, fraud of the worst kind, that he can obtain a re-hearing of the questions in dispute in