Discretionary power of Court to set aside judgment obtained on fraud.

The appellant who is the plaintiff in the suit for partition and separate possession, Original Suit No. 66 of 1947, has preferred this appeal against the order of the lower Court dismissing his application for the passing of the final decree on the ground that be committed fraud on the lower Court in obtaining the preliminary decree for partition.

The main facts which are not in controversy may be stated. The B schedule properties of which A schedule also forms part, belonged to four brothers the first defendant, the third, the sixth and the father of the seventh defendant. The second defendant is the son of the first defendant, defendants 4 and 5 are sons of the third defendant and the other defendants are alienees. One Chunilal Sowcar (hereinafter referred to as Sowcar) obtained a decree in Original Suit No. 102 of 1930, against the first defendant on 2nd September, 1930. Later on in 1931, defendants 3 and 6 executed security bonds offering themselves liable as sureties for the decree amount. There was first an attachment for the realisation of the amount due under the decree, viz., Rs. 2,673-4-0 of the share of the first, third and sixth defendants and the executing Court passed an order that in the first instance, the share of the first defendant should be sold and for any deficiency, the shares of the third and sixth defendants could be pursued later. In accordance with this order there was Court-auction sale and on 13th October, 1937, Jagannadha (the plaintiff in the suit, Original Suit No. 66 of 1947 aforesaid) purchased the A schedule properties for a sum of Rs. 70 subject to prior encumbrances in the region of about Rs. 15,000. Later on the Sowcar executed the decree for the recovery of the balance as against the shares of defendants 3 and 6 as well as for execution against them personally by way of concurrent execution. Defendants 3 and 6 paid the entire balance of the decree amount to the Sowcar on 25th January, 1944 and thereupon the execution petition was dismissed, full satisfaction having been recorded. This payment of the entire balance decree amount by defendants 3 and 6 is also evidenced by the receipt, Exhibit B-12, dated 25th January, 1944. That receipt runs as follows:

“Decree discharge receipt executed on 25th January, 1944 in favour of (1) Perumal Naidu, residing at Sirangunam Village, Mathurantakam taluk, (2) Govindarajulu Naidu and (3) Venugopal Naidu, the said individuals 2 and 3 being the younger brothers of the aforesaid person and acting on his behalf, by K. Chunilal Sowcar carrying on money-lending business in Chingleput Bazaar. The sale in respect of the E.P. No. 1097 of 1942, in O.S. No. 102 of 1930 filed by me against you in the Court of the District Munsif, Chingleput is fixed for 26th January, 1944. I have on this day received from you in cash Rs. 2,537-12-0 (Rupees two thousand five hundred and thirty-seven and annas twelve) being the decree auction warrant amount and have the entire decree satisfied. I shall file a petition in Court for entering full satisfaction and shall have the same discharged. To this effect is the decree discharge receipt executed with my consent.”

Jagannadha who purchased the A schedule properties in Court-auction is admittedly the power of attorney agent of the Sowcar. In July, 1947, he filed the present suits, Original Suit No. 66 of 1947, for partition and separate possession claiming the share of not only the first defendant but the shares of the third and sixth defendants as well. The trial Court negatived this contention and held that the plaintiff had purchased only the share of the first defendant in the A schedule properties and did not purchase the shares of the third and sixth defendants.

At this stage, it may be mentioned that all the defendants raised a further plea that at the time when the third and sixth defendants made the payments of Rs. 2,537-12-0 as evidenced by the receipt Exhibit B-12 there was an oral understanding between them on th