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Judgment
Pandrang Row, J.—This appeal is from the decree of the Subordinate Judge of Devakottai dated 10th September, 1935, declaring that the
judgment passed by this Court in Appeal No. 400 of 1928 on 13th February, 1934, reversing the decree of the lower Court in O. S. No. 33 of
1927 was obtained by fraud of the defendant in the present suit and was therefore null and void as against the plaintiffs therein. O. S. No. 33 of
1927 was a suit for contribution by the plaintiffs based on a certain decree passed against two firms, namely, the M. P. Firm represented by the
present plaintiffs and the S. A. Firm of which the then proprietor was the present appellant, that is, the defendant in the suit. That suit was first of all
decreed by the Subordinate Judge and when the decree came up in appeal it was set aside on the ground that the joint decree on the basis of
which contribution was claimed was not a valid decree as the defendant was a minor at the time the decree was passed and was not then
represented by a guardian ad litem and the suit was remanded for disposal on the alternative basis of a right of contribution based on the original
debt in respect of which that joint decree had been made, that is to say, the joint promissory note executed on behalf of the two firms to the Bank
of Rangoon. No doubt the basis of the High Court''s judgment in appeal was the minority of the defendant at the time the decree was passed in the
Burma Court. This minority was alleged by the defendant in his written statement and was not denied by the plaintiffs at any time either during the
trial or during the hearing of the appeal or on their behalf by their Counsel. The entire argument in this Court when that appeal was heard was on
the admitted footing that the defendant was a minor at the time when the decree was passed by the Burma Court. It is admitted even in the present
litigation that the plaintiffs themselves honestly believed that the allegation by the defendant of his minority at the time was true and therefore they
did not take the trouble of verifying the truth of that allegation. According to them they came to know that that allegation was false, casually, when
they had a talk with certain Chettiars about five months after the High Court''s decree and when the suit was pending, the further enquiry was
ordered by the High Court. No doubt it is now established beyond doubt that the defendant was not a minor at the time but had attained majority
in December, 1909, whereas the decree was passed in 1912. The obvious course in these circumstances was for the plaintiffs to have moved for
review of the judgment by the High Court. They did not however take this obvious course but preferred for reasons which are difficult to find to
institute a separate suit in the lower Court itself to set aside the judgment of the High Court in appeal as against themselves on the ground that it had
been obtained by fraud of the defendant appellant in the appeal. The lower Court has given a declaration as prayed for and the defendant appeals.
The only point for determination in this appeal is whether the judgment of the High Court in appeal dated 13th February, 1934, can be set aside
on this ground, namely, that it was based on the footing that the defendant was a minor at the time of the decree in the Burma suit which was the
result of an allegation made by the defendant in his written statement and repeated by his Counsel in the appellate Court and relied upon in his-
argument. Can this be regarded as fraud which would vitiate the decree of the High Court? We are of opinion that it cannot be so regarded. The
mere making of a false allegation in a written statement even with knowledge of its falsity, while it would amount to perjury, would not necessarily
amount to a fraud on the Court. The other party had an opportunity of knowing what had been said and if any allegation was according to them not
true, it was open to them to deny it and lead evidence on the point. In the present case what the plaintiffs did was not only not. to deny it in the trial
Court but also not to deny it in the appellate Court even when they knew perfectly well that the whole judgment was going to be reversed on this
ground of the minority of the defendant at the time of the decree in the Burma suit. The fraud which vitiates a decree must be something extrinsic to
the proceedings pending before the Court and the mere making of a false statement in the pleadings or during the examination of witnesses by
witnesses would not amount to a fraud of the kind which vitiates a decree. The Courts are there to distinguish truth from falsehood so far as
pleadings and evidence are concerned, and though the Courts may be mistaken, it cannot be said that the making of such false statements in the
pleadings or evidence amounts to a fraud which vitiates the decrees passed by the Courts. It is conceded that a decree cannot be set aside on the
ground that it was obtained by perjured testimony. This is laid down by the Full Bench in Kadirvelu Nainar Vs. Kuppuswami Naicker, . They
approved the reasoning of Sundara Aiyar, J., in Logadapathi Chinnayya Vs. Kotla Ramanna, . It is perhaps desirable to quote a few observations
from that case, Logadapathi Chinnayya Vs. Kotla Ramanna, :
The question is what would amount to fraud which would entitle an unsuccessful litigant to get the decree vacated. He cannot, it is clear, be
allowed to get round the rule of res judicata and to prove that the judgment given by the Court was wrong, because it came to a wrong conclusion
on the evidence before it. It follows from this that the Court''s conclusion both on the construction to be put on the evidence placed before it and
on the inference to be drawn from such evidence as well as on the trustworthiness of the evidence should be regarded as final. If the Court acts
erroneously in forming its judgment on any of these matters, the proper remedy is to invoke the help of the appellate tribunal where an appeal is
allowed by law. Another mode of rectifying an erroneous judgment is to apply for review of judgment. The unsuccessful party has, in such an
application, an opportunity to adduce any evidence which he failed to adduce at the hearing and which he could not, with all proper diligence, have
then adduced. It cannot be doubted that, in such cases, he cannot institute a fresh suit to get the judgment vacated. The allegation of fraud for
vacating a judgment, therefore, must be extraneous to everything which has been adjudicated on by the Court and not any fraud which has already
been dealt with by the Court.
In the present case the making of a false statement knowing it to be false in the written statement cannot be regarded as extrinsic to the
proceedings in the Court. The whole of the written statement must be deemed to have been considered by the Court before it pronounced its
judgment and if for some reason or other the Court accepted a certain allegation as true which is subsequently alleged to be false there is no
ground for vacating the decree on the ground of fraud. The remedy is as pointed out in Chinnayya v. Ramanna either by way of appeal or by way
of review. In this case the plaintiffs themselves are to blame for not contradicting the allegation on which everything depended in the appeal when
the appeal was being argued. It is more their carelessness than the recklessness of the defendant appellant that was responsible for the decision
against them by the appellate Court. In any case there was no fraud in. our opinion of the kind which alone can vitiate a decree passed by a Court.
For these reasons the appeal must be allowed and the decree of the Court below set aside and the suit dismissed with costs in both the Courts.