GUNARATNA v. DINGIRI BANDA.

GUNARATNA v. DINGIRI BANDA.

D. C, Kurunegala, 1,556.

Consent judgment obtained by fraud-Proper procedure to set it aside-Civil Procedure Code, s. 325-Hindrance to judgment-creditor taking possession-'' Tenant or other person " (s. 324).)

Where the consent of a party to a case instituted in the District Court was obtained by fraud and so judgment obtained, the proper remedy is to apply to the Supreme Court for an order on the Court below to review the impugned judgment and to confirm or rescind it.

If upon review the judgment is rescinded, an actio indebiti lies to the party who has been compelled to pay money in execution to recover it.

Where, in an action to vindicate certain lands in possession of defendants, plaintiff obtained judgment, and took out a writ of possession, but was unable to get into possession of some of the lands owing to the obstruction of the parties in possession, and where the plaintiff petitioned the Court under section 325 of the Civil Procedure Code, and the District Judge, without finding the facts Which constituted the obstruction, directed the petition of complaint to be numbered and registered as a plaint between the decree-holder and the respondents, with the object of investigating the respondents' claims to the different lands,-

Held, that it was the duty of the District Judge to find the facts which constituted the obstruction alleged, and if there was no obstruction, there was no foundation for the order in question:

In section 324, "other persons" is ejusden generis with tenant, i.e.. a person who has come on to the land under the judgment-debtor by a title which had accrued before the decree.

IN December, 1897, plaintiff commenced this action to recover possession of certain lands which he said had been sold and

conveyed to him by the defendant in December, 1887. He alleged that he went into possession under his purchase, but that in 1892 he had been ejected there from. Five years after the ousting the present action was brought. Defendant answered that the deed of conveyance of 1887 on which the plaintiff relied was a forgery.

The trial was fixed for the 16th March, 1898. On the 10th February the parties and their proctors appeared and stated to the District Judge that, as they had come to a settlement of the case, judgment should be entered in favour of plaintiff: for the lands in question and Rs. 1,000 as damages. The terms of this agreement were set forth in a paper subscribed by the parties and their respective proctors, and the Interpreter of the Court certified that the document had been explained by him to the defendant. The District Judge thereupon allowed the motion and signed a decree according to the agreement arrived at.

On the 29th April defendant's proctor moved for a notice on the plaintiff to show cause why the decree should not be re-opened. The application was made on an affidavit of the defendant, in which ho stated that his consent to the agreement was obtained by force and fraud of the plaintiff; that plaintiff had made him drunk; and that having been taken in that state before the District Judge he gave his consent. The District Judge allowed the motion and fixed the inquiry for the 30th May. On that day the defendant being absent the Court discharged the motion. On the loth July the defendant applied for a fresh notice on plaintiff to show cause why the decree should not be re-opened. The District Judge disallowed this motion, being of opinion that defendant was not entitled to any further consideration.

The defendant appealed.

Dornhorst, for appellant.

Wendt, for respondent.

BONSER, C.J.-

There seems to be some doubt as to what should be the proper procedure in cases where a party wishes to get a decree set aside on the ground of fraud. There is no doubt that, if a consent of the parties to a judgment is obtained by fraud, there must be some remedy for the fraud. This application was in substance

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