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Report No. 185 Section 44 This section says 'Fraud or collusion in obtaining judgment, or incompetency of court, may be proved'. It reads: "44. Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 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." In the 69th Report, after referring to a minority view in a few cases that proof of perjured evidence could be a ground, the said view was not accepted in the light of the dictum of Sadasiva Ayyar J in Kadirvelu Nainar v. Kuppuswami Naickar, 1919 Mad 1044 that if such a principle is to be accepted, there would be no end to litigation in India. We may also point out that 'fraud' under Section 44 must be extrinsic fraud, such as prevented a party from placing his evidence before court or in presenting his case. Similarly, gross negligence in conducting a prior case is no ground for fresh litigation except in the case of negligence of the guardian of a minor for which special provisions are contained in the Code of Civil Procedure, 1908 and the Limitation Act, 1963. The 69th Report did not suggest any changes in Section 44 except to add proposed Section 44A. We do not propose any change in section 44.    |
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