Decided on February 07,1962



- (1.) THE appellant is the 3rd defendant in a suit to set aside the decrees in O.S. No. 81 of 1100 on the file of the District Court, Nagercoil, and O.S. No. 17 of 1101 on the file of the District Court, Trivandrum, as also the execution proceedings had thereon been affected by fraud and for recovery of the plaint property with mesne profits.
(2.) THE facts are as follow: THE 2nd defendant was the foreman of a chitty started in 1096 in which the 1st defendant's father was a subscriber who prized his ticket and executed the bond, Ext. C, mortgaging the plaint property to secure due payment of future subscriptions. For amounts due to the plaintiff by the foreman, he assigned the said bond to her in 1078 (Vide Exts. B and F dated 11-11-1098 and 7-12-1098). THE 3rd defendant, professing to be a subscriber in the above-said chitty, instituted O.S. No. 81 of 1100 on the file of the District Court, Nagercoil, for paid up subscriptions, and in execution of the decree obtained therein purchased the rights under Ext. C. He then filed O.S. No. 17 of 1101 in the District Court, Trivandrum, to enforce the bond, with the present plaintiff also as a party thereto, obtained decree and purchased the suit property in court-sale. THE plaintiff thereupon instituted this suit on 24-5-1113 for a declaration that the aforesaid two decrees and their execution proceedings were fraudulent and therefore invalid as against her. THE defendants contended that the proceedings were lawful and valid and denied any fraud having been played in regard thereto. THE court below decreed the suit. Hence this appeal. The fraud alleged was twofold, namely, (i) setting up a false claim in a suit, and (ii) getting it decreed by fraudulent contrivances. The latter aspect need not detain us long. The fraudulent contrivance complained of is of the 2nd defendant having induced the plaintiff to sign a vakalath and some blank papers for use in O.S. No. 17 of 1101 and to pay Rs. 300/- to him for expenses, all of which she readily did, on the representation that she could thereby easily realise her money in that suit itself. She pleads that she made frequent enquiries with the 2nd defendant, but never communicated with her counsel about the case for about 12 years, till she went over to Trivandrum in Meenam 1112 and came to know of the decree and execution sale had in the case. Ext. J is the vakalath executed by the plaintiff and Ext. K her written statement in O.S. No. 17 of 1101. The vakalath bears an endorsement that she was known to counsel and signed the same before him; and the written statement bears the same date as the vakalath and is countersigned by counsel. If anything could be inferred from Exts. J and K, it can only be that they were prepared and filed in court simultaneously under advice of counsel.
(3.) IN Ext. K, she had conceded the claim in the suit (O.S. No. 17 of 1101) and stated that she would take other appropriate proceedings for realisation of her dues from the 2nd defendant. This plea cannot by itself spell out any fraud been played on her. Ext. C is an asset of the chitty which must naturally be available for the liabilities of that chitty. The plaintiff was not a creditor in respect of the chitty. S. 28 of the Travancore Chitties Act, 1094 provided: "Any voluntary or involuntary transfer of the rights of a foreman to receive subscriptions from prized subscribers shall, if it defeats or delays a non-prized or unpaid prized subscriber, be voidable at the instance of such subscriber." The assignment of Ext. C in favour of the plaintiff came obviously within the purview of that section. The written statement is countersigned by counsel and was filed in court on 28-8- 1101. The judgment in the case is Ext. III herein, and is dated 19-11-1105. Plaintiff never repudiated her written statement, although the suit was pending trial for more than four years after submission thereof. Ext. III shows that throughout the trial of the case, counsel appeared for her. IN these circumstances it is difficult to believe that she was the victim of a fraud in the conduct of O.S. No. 17 of 1101. Further, fraud to avoid a judgment, must be of the person who secured the judgment in his favour by means of such fraud unless it be a judgment in rem available against all the world. "Though in most cases a judgment obtained by fraud can be set aside only as against the person guilty of the fraud, this limitation does not apply to an action to set aside a judgment granting probate of a will, inasmuch as a will must be good or bad against all the world. Birch v. Birch 1902 p. 130," (Kerr on Fraud and Mistake, 7th Edn., p. 417). Here the judgment in O.S. No. 17 of 1101 is obtained by the 3rd defendant. There is no allegation of fraud on the part of the 3rd defendant except that he had set up a false claim in O.S. No. 81 of 1100 which ultimately culminated in the court-sale had in O.S. No. 17 of 1101. There is no case that he had in any way prevented the plaintiff from properly defending O.S. No. 17 of 1101. It has therefore to be held that a case of fraud sufficient to set aside the decree and execution sale in O.S. No. 17 of 1101 has not been made out by the plaintiff.;

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