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TMI Blog1925 (3) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... d symbolical possession of the properties on the 20th February 1916. The present suit was brought on the 28th February 1920 in which the Plaintiffs prayed "to have their possession confirmed after declaration of their alleged title to the lands in suit or in the alternative for recovery of possession of the disputed lands, after declaration that the decree in the mortgage suit No. 79 of 1914 and the auction sale in execution thereof were fraudulent and void, and if necessary, after setting aside the decree." One of the pleas rinsed by the Defendants was that of limitation and that is the only point pressed before us on behalf of the Defendants-Appellants. The Plaintiff in his plaint alleged that he came to know of this decree on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nced that they (the Plaintiffs) knew of the same (the decree and the sale) on the 20th February 1916 when the symbolical possession was delivered and the Defendants wanted them to vacate the basin. This suit is brought on the 28th February 1920. Therefore the suit is evidently after three years from the date when the Plaintiffs knew of that fraud." As to Sch. (ka) the learned Subordinate Judge is of opinion that as the land described in that schedule was interpolated in the mortgage bond after its execution, "the decree and sale have not affected the lands of Sch. (ka)." The learned Judge seems to think that different legal considerations should apply to different portions of the decree obtained by the Appellant. If this is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng effect by parties or privies in any collateral action or proceeding. The position is different when a judgment shows on its face that it is void for want of jurisdiction either of the person or the subject-matter. Such a judgment is treated as a nullity, collaterally impeachable by any person interested wherever it is brought in question." The same view has been expressed in the case of Raj Kumar Sarkel v. Raj Kumar Mali (1915) 20 C. W. N. 659, where it was held that a sale in execution of a fraudulent decree is not a void but a voidable sale; till vacated by an appropriate proceeding, the rights created thereby are effective. In that case which covers a greater part of the points raised in this case, the sale was sought to be set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated as a declaratory suit. This is an attempt to evade the clear provisions of law. To hold that the Plaintiffs are entitled to have a declaration that a certain decree is not binding against them though they were parties to such proceedings would be to make nugatory such provisions of the law which makes it obligatory on a party to set aside the decree and the sale in order to remove an impediment which stands in the way of his obtaining the relief he seeks. For instance, the Plaintiff, to avoid Art. 91 or 92 of the Limitation Act, may not seek to have the instrument which purports to have been executed by him cancelled or set aside but may merely sue for a declaration and possession of property or other ancillary reliefs. This he cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, J. I agree that these appeals must he allowed. The facts shortly are as follows :--The Respondents are the mortgagors and the Appellant in S. A. No. 1347 of 1922 is the mortgagee. The latter brought a suit in 1916, obtained an ex parte decree on her mortgage, and put the properties to sale which were purchased by the Appellant in S. A. No. 1253 of 1922. Thereafter this latter Appellant as auction-purchaser took symbolical possession on the 20th February 1916 and the present suit was brought on the 28th February 1920. The Plaintiff-Respondents' case was that as a matter of fact one of the items in the schedule of the mortgage deed was fraudulently interpolated after the mortgage was executed. They brought the suit on the 28th Februar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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