The main legal point established in the judgment is that an application to withdraw an application for dismissing the suit or appeal is maintainable if fraud is played upon the plaintiff or appellant. The court also discussed the concept of constructive fraud and its application in the case.

( 1 ) ON the application of the State Bank of India, the appellants, these two second appeals were dismissed as withdrawn by order dated 25-5-2001. Applications have been filed by the appellant bank in both the appeals to recall the aforesaid order dismissing the appeals as withdrawn and these applications are being disposed of by the present order.

( 2 ) THE facts giving rise to the present applications may be briefly stated. The State Bank of India hereafter referred to as the bank had filed a suit No. 25 of 1977 against the firm M/s. Jamuna Prasad Munni Lal, a proprietorship concern of which Jamuna Prasad Jaiswal was the sole proprietor. The suit was decreed for re-covery of Rs. 3,82,827. 70 P with interest @ 18% per annum from the date of the suit till the date of payment. The defendant filed appeal, which was registered as Civil Appeal 8 of 1999 in the Court of District Judge, Deoria.

( 3 ) DURING the pendency of the aforesaid litigation Jamuna Prasad Jaiswal died leaving behind three sons who according to the banks case were partners of a new firm Jamuna Prasad Jaiswal and Sons. According to the banks case these partners sold certain assets of the proprietorship concerned M/s. Jamuna Prasad Munni Lal Jaiswal hypothecated to the bank and as such the amount of Rs. one lac payable to the new firm by the purchasers under a bank draft which represented the sale proceeds of the hypothecated assets was withheld by the State Bank of India, Deoria. The new firm Jamuna Prasad Jaiswal and Sons then filed original suit No. 49 of 1980 for recovery of Rs. one lac principal and Rs. 45,000. 00 interest against the bank alleging that the payment was wrongfully withheld. The trial Court decreed the suit for recovery of the principal sum of Rs. one lac but dismissed the claim for interest. The bank challenged the decree of recovery of Rs. one lac against it by appeal registered as appeal No. 42 of 1998. The new firm the first respondent in this appeal filed appeal No. 56 of 1998 against the refusal of interest. By judgment and decree dated 5-2-1999 the lower appellate Court dismissed the banks appeal but allowed the appeal of the new firm and decreed the suit for recovery of Rs. 1,43,500. 00 for the principal and interest. The operative portion of the judgment provides that simple interest @ 12% per annum with pendentelite and future interest would be payable and the bank was directed to make the payment within one month, failing which, the new firm the plaintiff would thereafter be entitled to compound interest at the rate charged by the bank on its loans. The aforesaid two second appeals have been preferred by the Bank against the decree of the lower appellate Court.

( 4 ) AN application was filed by the appellant bank for withdrawal of the aforesaid second appeals giving rise to the order dated 25-5-2001 in each of the appeals dismissing them as withdrawn. It appears that after the orders dismissing the appeals as withdrawn was passed, the respondent firm applied for execution of the decree on 29-5-2001 for recovery of a sum of Rs. 45,81,124. 05 p. The present applications by the bank for recall of the order dismissing the appeals as withdrawn were then filed. In these applications it is stated that a settlement had been made between the bank and the respondent firm and that the bank had received the payment. The applications are supported by affidavit of Rajiv Ranjan, Deputy Manager of Deoria Branch of the Bank. The affidavit of V. S. Dixit, Field Officer in the Bank was also filed. The substance of the averments made in these affidavits is that it was settled between Vijay Shanker Jaiswal one of the sons of Jamuna Prasad Jaiswal the proprietor of Jamuna Prasad Munni Lal, who (Vijay Shanker Jaiswal) was also a partner of the new firm and V. S. Dixit, Field Officer that if the appellant bank settled the account in respect of the decree of the bank against the judgment-debtor M/s. Jamuna Prasad Munni Lal under the One