Case: Gurlingappa Shivappa Masali and Ors. Vs Sabu Ramappa Kore. High Court of Bombay (India)
| Judges | Patkar, J. |
| Issue | Code of Civil Procedure |
| Citation | AIR 1931 Bom 218 |
| Judgement Date | August 12, 1930 |
| Court | High Court of Bombay (India) |
Judgment:
Patkar, J.
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This is a suit brought by the plaintiffs for a declaration that the decree obtained by defendant 1 against defendant 2 was a collusive decree on the ground that defendant 2 in order to defraud the plaintiff's passed a hollow sale deed to his brother in law defendant 1 of his share in the plaint lands and that subsequently in collusion with defendant 2, defendant 1 brought a suit against defendant 2 on this sale deed and obtained an ex parte decree.
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The learned Subordinate Judge held that the plaintiffs were entitled to maintain the suit and that the decree in Suit No. 332 of 1924 was obtained by defendant 1 collusively with defendant 2 as alleged by the plaintiffs, and therefore gave a declaration that the decree was collusive.
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Two appeals were filed against the decree, Appeal No. 99 by the plaintiffs urging that the lower Court ought not to have merely given the declaration but ought to have set aside the decree, and Appeal No. 101 by defendant 1 attacking the grant of the declaration. The learned District Judge held that the suit was not maintainable on two grounds: firstly, that the plaintiffs did not ask for setting aside the decree in the plaint and therefore could not sue for a declaration, and secondly, there was no evidence of collusion, and also relied upon the decision in the case of Ram Sarup v. Rukmin Kuar [1885] 7 All. 884 With regard to the application for amendment, Ex. 10, which was filed in appeal, the learned Judge was of opinion that it was a new case quite different from the case made before the Subordinate Judge, and that even if Article 91, Lira. Act, did not apply, Article 120 would be applicable to a suit to set aside the sale, and the amendment of the plaint would deprive the defendant of the defence of limitation. He therefore rejected the application for amendment, and dismissed the plaintiffs' suit.
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On second appeal it is urged that the lower Court ought to have given the declaration even though the plaintiffs did not ask for consequential relief, and it is further urged that if the consequential relief was not asked for in the plaint, the plaint should be allowed to be amended by incorporating the relief with regard to the setting aside of the decree.
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It appears that defendant 2 Somanna and his nephew Ramalingappa owned 11 lands including the three lands in suit. Ramalingappa brought a suit for partition against defendant 2 in the year 1919 for partition of his half-share. The...
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