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4. Respondent is resisting the suit by filing the written statement contending that the Suit is barred by Res Judicata and that the decree in O.S.No.352/1986 operates as Res Judicata. When the contested decree in O.S.No.352/1986 was confirmed by the Appellate Court / District Judge, Coimbatore in A.S.No.38/1987, Revision Petitioner having exhausted his remedies has filed the present suit for the purpose of harassing the Respondent. The present suit, which is highly vexatious, is nothing but abuse of process of the court and is absolutely barred by Res Judicata.

(2) Can the contested decree in O.S.No.352/1986, confirmed by the First Appellate Court, be allowed to be re-agitated on the ground that it was obtained fraudulently by the use of a false document ?

(3) Is any fraud as contemplated under Section 44 of the Indian Evidence Act is made out ?

10. We may straightaway point out that the present Application I.A.98/2001 and the suit O.S.No.2473/1996 are nothing but re-agitating the entire points, which have already reached finality in the earlier round of litigation both on (i) adjudication upon the suit ; (ii) adjudication of the Application. O.S.No.352/1986 was determined after full trial. Revision Petitioner / Plaintiff herein contested the said suit raising the same point that the Promissory Note dated 24.11.198 3 is a forged and fabricated one. The Courts have gone into that question and that question was adjudicated upon and the suit O.S.No.352/1 986 was decreed after full contest. In that suit, Revision Petitioner herein had filed I.A.No.110/1987 for sending the Promissory Note to Handwriting Expert and the same was dismissed; against which, Revision Petitioner / Plaintiff has not preferred any Revision. Thus, in the suit O.S.No.352/1986, genuineness or otherwise of the Promissory note was directly and substantially in issue, which was adjudicated upon and determined.

(5) any such act or omission as the law specially declares to be fraudulent".

15. No such instance of fraud is averred or proved by the Revision Petitioner. In the plaint, the Revision Petitioner has not elaborated the details of fraud played upon the Court. In the cause of action, the details of fraud not shown making out a case of fraud. The Revision Petitioner has also not stated as to when and how he detected the fraud played upon the Court in obtaining the decree in O.S.No.352/19 86. If really any deception was played upon the Court, the same could have been brought to the notice of the Court either in the First Appellate Court or in the Second Appellate stage. The learned counsel for the Revision Petitioner has submitted that the Revision Petitioner has filed Copy Application for I.A.No.110/1987 and that the same was returned as no such petition was filed in O.S.352/1986. In the impugned order, the learned District Munsif has clearly referred to the earlier Application in I.A.No.110/1987 and the order passed thereon. While so, the return on the Copy application as to the nonavailability of the Petition in I.A.110/1987 may not be correct. Even if that be so, suitable direction could be issued to the concerned court to take appropriate action on the non-availability of the petition and orders in I.A.110/1987. That need not in any way detain us from considering the matter. In my view, as against the contested decree, confirmed by the First Appellate Court, no suit could be filed under section 44 of Indian Evidence Act for cancellation of the decree.

23. Fraud or collusion as contemplated under S.44:

The nature and kind of fraud contemplated under section 44 must be actual and positive fraud. The decree must have been fraudulently obtained keeping the adversary and the Court in ignorance of the real facts of the case. In my view, fraud as laid down in section 44 refers to the fraud practised against the court by anyone of the parties or it may also imply a fraud against any parties to the proceedings. In a case of contested decree fought out till the Appellate Court, where is the question of fraud, that too, actual positive fraud played against the Revision Petitioner ? Absolutely there could be none.