1. On 14th November 1969, the respondent in the revision petition executed a promissory note in favour of the revision petitioner herein for a sum of Rs. 10,000. On the foot of that promissory note, O.S No. 7311 of 1970 came to be filed under Or. 37, C.P.C on 23rd December 1970. The respondents herein filed I.A 9065 of 1971 seeking leave to defend. It was his case that no consideration had passed. The court by an order dated 11th February 1972 granted conditional leave directing the respondent to deposit a sum of Rs. 6000 on or before 28th February 1972 failing which the said petition would stand dismissed and the suit was directed to be called on 1st March 1972. The deposit was not made in accordance with this order. Therefore, the suit was taken up on 1st March 1972. At that time, the counsel for the respondent was stated to be present and it was decreed. In the meanwhile what had happened is against the grant of conditional leave in I.A 9065 of 1971, the matter was taken up to this court in C.R.P 509 of 1972 and that was dismissed in limine. However, time was extended to deposit the sum of Rs. 6000 by one week from 1st March 1972. On 6th March 1972, the deposit was made. It has to be presumed under these circumstances that the decree dated 1st March 1972 was passed without being aware of the order by this court, which was communicated only on 2nd March 1972. Having regard to these important facts, no objection could be taken to the decree as such. Nevertheless, on 31st July 1974, I.A 14962 of 1974 was filed by the respondent herein under O 37 Rule 4 C.P.C to set aside the decree. By an order dated 24th September 1974 the said application was dismissed. On 26th September 1974, I.A No. 22623 of 1974 was filed, purporting to be under S. 44 of the Evidence Act alleging that the decree in O.S No. 7311 of 1970 passed on 1st March 1972 came to be obtained by fraud, since on inspection of the said promissory note, the respondent came to know that the promissory note was originally insufficiently stamped and later on, another stamp was affixed and it was crossed so as to make it a valid promissory note. The learned City Civil Judge, Madras passed an order setting aside that decree on payment of costs Rs. 50 on or before 10th April 1975 and directed the suit to be called on 11th April 1975. Aggrieved by this order, the present civil revision petition has come to be filed.
2. Mr. M.R Narayanaswami, learned counsel for the petitioner, contends as under. Firstly, S. 44 of the Evidence Act does not confer any substantive right on the parties. It is a matter relating to the procedure. Therefore, the application under revision itself is misconceived. Secondly, assuming that the application is maintainable under S. 44 of the Evidence Act, the court which passed the order under revision was oblivious to the important fact that I.A 14962 of 1974 was dismissed as early as 24th September 1974. Thereby the finally had reached concerning the decree in O.S 7311 of 1970, and thereafter, the court has no jurisdiction to reopen the matter, and lastly it is submitted that it is not correct on the part of the court to hold that the decree dated 1st March 1972 is an exparte decree
3. Mr. M.N Krishnamani, learned counsel for the respondent would urge in meeting the contentions that the decree dated 1st March 1972 was passed by the City Civil Court in ignorance of the order of this court whereby the time was extended on 1st March 1972 by one week to deposit Rs. 6000. In compliance of that order, a sum of Rs. 6000 had been deposited, and, therefore, the decree itself cannot be said to be valid. Only on inspection of the suit promissory note, the affixture of the additional stamp came to be noticed, and, therefore, the defendant (respondent herein) was well justified in invoking S. 44 of the Evidence Act and no exception could be taken to the order under revision.
4. I must confess my inability to appreciate the order under revision, which only shows that the learned Judge, City Civil Court, had not even cared to look at the provisions of S. 44 of the Evidence Act. S. 44 of the Evidence Act occurs under the heading— “Judgments of courts of Justice, when relevant”. This provision relates to procedure. It does not confer any right on the party. Therefore, the respondent herein is not enabled to move the court under S. 44 of the Evidence Act. A mere reading of that section, which is in the following terms—
“44. Fraud or collusion in obtaining judgment or incompetency of court, may be proved. Any party to a Built or other proceeding may show that any judgment, order S. 40, 41 or 42 and which has been proved by the adverse party, was delivered by a court not competent to deliver it, or was obtained by fraud or collusion.”
will clearly show that if a judgment is sought to be relied upon in a proceeding, it is well open to the party to contend that the judgment sought to be relied on, was obtained by fraud. This is far from saying that a court has jurisdiction to set aside a decree under this section at the instance of one of the parties saying that it was obtained by fraud. Though the order under revision in terms does not refer to S. 44, the very application for invoking the jurisdiction of the City Civil Court was under S. 44. Therefore, it was necessary on the part of the learned Judge to have adverted to this section before entertaining the application. He had not cared to do so, Not only that; as if adding insult to injury no reference is made to the order in I.A No. 14962 of 1974. He is completely oblivious to that proceeding which has got a material bearing on the issue, namely, I.A No. 14962 of 1974, as the narration of the facts would disclose that it was an application under Or. 37, Rule 4, C.P.C, filed by the respondent herein to set side the decree dated 1st March 1972. That was dismissed on 24th September 1974. That order, not having been appealed against or questioned has given finality to the decree dated 1st March 1972. Thereafter, the City Civil Court will have absoluetly no jurisdiction to set aside the decree in any manner. Notwithstanding this the present application was entertained and considering the same as an exparte decree, an order was passed setting aside the decree on terms. I am only surprised about the casual manner in which the learned City Civil Judge has approached the matter, which is hardly commendable.
5. Therefore, the revision has to be allowed, and it is here by allowed with costs.
VCS