1909 (4) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the suit was barred by Sections 13 and 43 of the Code of Civil Procedure.
2. Whether the decree of 1903 was obtained by fraud and the decree of 1904 by coercion, misrepresentation, and undue influence.
3. Whether the plaintiff was entitled to maintain this suit in view of her unsuccessful attempt to impeach the decree of 1904 by an application for review of judgment.
4. The legal effect of the decree of 1904.
5. Various questions on the merits as to the limitation, estoppel, factum, and validity of the adoption of the defendant, and the conditions, if any, subject to which it had been made.

Detailed Analysis:

1. Bar by Sections 13 and 43 of the Code of Civil Procedure:
The Subordinate Judge dismissed the suit on the ground that Sections 13 and 43 of the Code of 1882 precluded its trial. The plaintiff argued that a consent-decree cannot be impeached by an application for review of judgment, and any order of dismissal made upon such an application does not debar the applicant from recourse to a regular suit, which is her only remedy. The Court found that the Subordinate Judge erred in applying Sections 13 and 43 as the order upon the application for review of judgment does not operate as res judicata under Section 13 of the Code of 1882.

2. Decree of 1903 and 1904:
The plaintiff alleged that the decree of 1903 was obtained by fraud and the decree of 1904 by coercion, misrepresentation, and undue influence. The Subordinate Judge did not investigate these allegations on the merits. The Court noted that the investigation upon an application for review of judgment is neither as full nor as searching as in a regular suit. Therefore, it is more appropriate that the investigation of the validity of the consent should form the subject-matter of a distinct suit.

3. Plaintiff's Entitlement to Maintain Suit:
The Subordinate Judge held that the plaintiff was debarred by reason of her ineffectual attempt to review the decree of 1904 from attacking it by a regular suit. The Court found that the two remedies (application for review of judgment and regular suit) are not inconsistent and alternative but cumulative and concurrent. Therefore, the unsuccessful application for review does not debar the plaintiff from maintaining a regular suit.

4. Legal Effect of the Decree of 1904:
The Subordinate Judge held that the circumstances in which the consent-decree of 1904 is alleged to have been made do not constitute fraud, and that the plaintiff is concluded by the decision on the application for review of judgment. The Court disagreed, stating that the investigation into whether the consent upon which the decree is founded was vitiated by fraud is entirely foreign to the subject-matter of the litigation and should be fully investigated upon evidence in a regular suit.

5. Merits of the Adoption:
The remaining issues raised various questions on the merits as to the limitation, estoppel, factum, and validity of the adoption of the defendant, and the conditions, if any, subject to which it had been made. The Court did not delve into these issues as the suit was dismissed on preliminary grounds. The case was remitted to the Subordinate Judge to be heard on the merits.

Conclusion:
The appeal was allowed, the judgment and decree of the Subordinate Judge were set aside, and the case was remitted to be heard on the merits. The costs of the appeal will abide by the result. The Court directed that the court-fees paid on the memorandum of appeal be returned to the appellant.