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Judgment
We agree with the Acting District Judge that the suit is not properly one for a declaratory decree u/s 42 of the Specific Relief Act. The ground
of action really is that the defendant by fraud has obtained an advantage in proceedings in a court having jurisdiction which must necessarily make
that court an instrument of injustice, and the remedy would appear to ILR (1886) M 354 : (1885) 11 R. 7A 884 : (1879) L.R. 5 C. 86. be by way
of injunction to restrain the party from executing the decree. The Court cannot itself be made a party to the suit. See Duronidhur Sen v. The Agra
Bank ILR (1879) C. 86 and references thereunder; Daniell"" Chancery Practice,'' 3rd Edition, 1218; 4th Edition, 1471 ; Drury on Injunctions, 96'';
Story''s Equity Jurisprudence, 899--900.
We cannot allow the plaint to be amended as to do so would change the character of the suit.
The second appeal must, therefore, be dismissed with costs.
NOTE-Dan''s.Ch. Pr. 6th Edn.1531, and Bigelow on Fraud,1888. Edn.107