IMPORTANT POINT
Section 44 of the Indian Evidence Act, 1872 allows a party to challenge a judgment obtained by fraud or delivered by an incompetent court without needing to file a separate suit, thereby creating an exception to the principle of res judicata.

JUDGMENT :

A. BADHARUDEEN, J.

1. This Regular Second Appeal has been filed under Order XLII Rule 1 and Section 100 of the Code of Civil Procedure, assailing the decree and judgment in A.S.No. 19/2019 on the files of the Additional Sub Court-II, Thrissur, arose out of the decree and judgment in O.S.No. 545/2011 on the files of the Munsiff Court, Wadakanchery.

2. Heard the learned counsel for the appellant/legal heir of the 1st defendant in the suit as well as the learned counsel appearing for the 1st respondent, who is the plaintiff in O.S.No. 545/2011.

3. I have perused the relevant documents and the decisions placed by both sides.

4. I shall refer the parties in this appeal as 'plaintiff', 'legal heir of the 1st defendant' and ‘3rd defendant’ for convenience.

5. Facts of the case:

The plaintiff, who obtained joint right over the plaint schedule property on the basis of an auction purchase in a court sale, had filed the present suit, seeking partition of his ¼ share in the property.

6. The 1st defendant filed written statement contending that she obtained exclusive ownership and possession over the plaint schedule property by a Will deed executed by Velayudhan (husband of the 1st defendant). It was also contended that, as per the verdict in O.S.No. 183/2010, the genuineness of the Will deed, which was found in favour of the 1st defendant, was found to be properly executed.

7. After filing written statement, the plaintiff filed replication, challenging the execution and genuineness of the Will on the submission that the same is the outcome of fraud, so as to hold the same as not binding on the plaintiff.

8. The trial court recorded evidence. PW1 was examined and Exts.A1 to A20 were marked on the side of the plaintiff. DW1 was examined and Exts.B1 to B10 were marked on the side of the defendants.

9. Finally, the trial court decreed the suit and passed preliminary decree for partition. The preliminary decree was challenged in A.S.No. 19/2019 and the learned Additional Sub Judge, Thrissur confirmed the finding of the trial court. Thus, this Second Appeal.

10. Heard both sides in detail on admission on 25.6.2024. Appeal got admitted on 25.6.2024, raising the following substantial questions of law:

(1) What is the legal impact of Section 44 of the Indian Evidence Act, 1872? (for short, ‘the Act, 1872’ hereinafter)

(2) Is it necessary to institute a separate proceeding to set aside decree and judgment in a previous suit, when plaintiff is able to show that it was delivered by a court, not competent to deliver it or the same were obtained by fraud or collusion?

(3) Can a litigant, who is not a party to the previous litigation, is able to avoid a verdict in a previous litigation, merely alleging fraud in obtaining the same with the aid of Section 44 of the Act, 1872, without filing a suit to set aside the same?

11. A point raised by the learned counsel for the appellant/the legal heir of the 1st defendant, is that, based on Ext.A19 verdict in O.S.No. 183/2010, a suit filed by the 3rd defendant/3rd respondent herein against the 1st defendant and other legal heirs, whereby, the court found the genuineness of the Will executed by Velayudhan in favour of the 1st defendant and therefore, without challenging the legality of Ext.A19 judgment, the trial court as well as the appellate court went wrong in passing preliminary decree, ignoring Ext.A19, since there is no prayer either to set aside or to ignore Ext.A19 judgment and the decree thereof.

12. In this connection, the learned counsel for the appellant/legal heir of the 1st defendant placed a three bench decision of the Hon'ble Apex Court in Union of India and Others v. Major S.P. Sharma and Others, 2014 KHC 4154 with reference to paragraph No. 70 of the above judgment. In paragraph No. 70, the Hon'ble Apex Court held as under:

70. A decision rendered by a competent Court cannot be challenged in collateral proceedings for the reason that if it is permitted to do so there would be “confusion and chaos and th