The judgment established the principle that a decree obtained by fraud may be set aside in a subsequent suit, and the representation of defendants in a suit is crucial in determining the binding nature of a decree.

Devadoss, J.

1. This is a suit by the plaintiffs, for setting aside the decree, in O.S. No. 374 of 1915 on the ground of fraud. The District Munsif decreed the suit, as regards items 2 and 8 of the plaint on the ground that the decree in the previous suit was vitiated by fraud and that it was not binding on the plaintiffs. The Subordinate Judge of Kurnool has reversed that decree and has dismissed the plaintiffs suit. The Second Appeal related only to items 2 and 3 of the plaint.

2. Mr. C.S. Venkatachariar for the appellants contends that the decree in the previous suit was vitiated by fraud, inasmuch as the plaintiff brought a suit false to his knowledge, that the 3rd defendant trespassed upon the property belonging to him. It is conceded by him that where a judgment has been obtained by perjured evidence, a subsequent suit will not lie to sot aside that judgment. This point was set at rest by the Full Bench decision in Kadirvelu Nainar v. Kuppuswamy Naicker (1918) 41 Mad. 743. In that case, the learned Chief Justice, Mr. Justice Sadasiva Ayyar and Mr. Justice Spencer held that the decision, in Venkatappa Naick v. Subba Natch (1906) 29 Mad. 179 was wrongly decided and that a suit to set aside a decree in a previous suit, on the ground that it was obtained by false evidence tendered at the trial, would not lie. Mr. Venkatachariar contends, that though he is precluded by the Rull Bench decision in Kadirvelu Nainar v. Kuppuswamy Naicker (1918) 41 Mad. 743, from contending that the judgment obtained by perjured evidence is liable to be set aside, in a subsequent suit brought for the purpose, yet, is entitled to urge that a judgment obtained by a party by bringing a suit false to his knowledge could be set aside in a subsequent suit, on the ground of fraud. His argument amounts to this. If a Court has both the parties before it and passes judgment on a consideration of the evidence tendered by the parties it would not be open to either of the parties to the suit to impeach the judgment, on the ground of fraud, merely by reason of the fact that perjured evidence was adduced in the case; but if the plaintiff brings a suit, knowing it to be false and adduces evidence in support of it, he obtains a judgment by the perpetration of fraud and therefore such a judgment is liable to be upset, in a subsequent suit brought for the purpose. He further urged that if the defendant is ex parte and does not adduce evidence, the plaintiff who knows he has brought a false claim, knowing it to be false, commits a fraud upon the Court and therefore the judgment obtained in such a suit is vitiated by fraud.

3. A number of oases have been cited before me and I shall briefly notice the more important of them. The authority of Flower v. Lloyd 10 Ch. D. 327 was held by the learned Judges, who decided Venkatappa Naick v. Subba Naick (1906) 29 Mad. 179 to have been considerably weakened by reason of the decisions in Abouloff v. Oppenheimer (1882) 10 Q.B. 295 and Vadala v. Lawes (1890) 25 Q.B.D. 310. It is not necessary to discuss the English cases in view of the decisions in Kadirvelu Nainar v. Kuppuswami Naicker (1918) 41 Mad. 743. The earliest decision in Calcutta is in Mahomed Golab v. Mahomed Stilliman (1894) 21 Cal. 62. In that case Sir Comer Petheram, C.J., after a consideration of the oases on the point observed.

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 it has ever been suggested in any decided case, and in my opinion, it is not the law that because a person, a