Entitlement of plaintiff to have his suit restored and disposed of afresh.

The respondent (plaintiff) brought a suit for the recovery of a certain sum of money from the petitioner (defendant) and obtained an ex parte decree on the 23rd of March, 1950. The defendant subsequently filed a suit, O. S. No. 127 of 1950, in the Court of the District Munsif of Tirunelveli for a declaration that the said ex parte decree was not binding on him and for an injunction restraining the plaintiff from executing that decree. It was held in that suit that by reason of the fraud of the plaintiff summons had not been served on the defendant and, therefore, the decree was liable to be set aside. On that finding the suit was decreed. There was an appeal but the appeal was unsuccessful. The plaintiff thereupon filed two applications, in effect seeking to have his suit restored and proceeded with. The petitions were ordered and the suit was revived. The above two Civil Revision Petitions seek to revise the order of the learned Judge.

The only question which falls for decision in these two petitions is whether the result of the decree in the suit filed by the defendant which was later confirmed on appeal is that the plaintiff in the original suit would be entitled to have a fresh disposal of his suit. In my opinion it is not possible nor desirable to lay down a general rule of universal application. Each case would depend on the particular facts of the case, as for example, the nature of the findings in the later suit and the ground on which the decree was held to be not binding on the defendant. It, in the subsequent suit by the defendant there is a finding that the plaintiff’s claim was false to his knowledge but fraudulently he had managed to obtain a decree, then, of course, there can be no question of revising the suit. That would be inconsistent with the finding which had become final as between the parties that the plaintiff’s claim was false. But there may be cases where in the subsequent suit there is no adjudication on the merits but the decree is held to be not binding and liable to be set aside because summons had not been properly served, may be on account of the fraud practised by the plaintiff. In such cases it is obvious that the plaintiff’s claim has really not been decided by any Court. His claim has not been found to be false in the subsequent suit. It seems to be extremely unreasonable to say that because the plaintiff procured a decree by a trick in not having the summons of the suit served on the defendant, he should not be permitted to establish his case after his fraud had been discovered and the decree obtained by him has been set aside.

Mr. S. Rajaram relied strongly on an early decision of the Bombay High Court in Bhimaji Govind v. Rakmabai1. In that case A filed a suit against B, in which a consent decree was passed. That decree was set aside in a subsequent suit brought by B on the ground that it had been obtained by fraud and collusion between A and B’s agent, who had no authority to consent. Thereupon A applied to have his suit restored to the file and reheard on the merits, contending that the decree having been set aside, the suit remained undecided. With great respect to the learned Judges, I am unable to agree with the principle laid down by them. The original decree in that case was a consent decree. Once it was established in the later suit that there was no real consent, the basis of the decree had disappeared and the original decree could no longer stand. With great deference to the learned Judges I cannot agree with the following observations:

"When the applicant’s decree was set aside it was not reversed".

I am unable to see how a decree can continue to exist when it has been set aside subsequently by a competent Court in the presence of the parties to the prior decree. No doubt, ordinarily a decree in a suit is set aside only by an appellate Court. But the law does permit the defendant to have a prior decree set aside say, on grounds of fraud. The result to my mind appears to be