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27. In view of the difference of opinion this case has been placed before me for decision under Clause 28 of the Letters Patent.

28. The question formulated is -- "whether on the fact as stated in paragraph 2 (here para 18) of the judgment of Reuben, J. the plaintiff can ignore the sale on the ground that the decree was fraudulent".

29. In the approach to this question, it is important to remember that fraud does not make a judicial act or transaction void but only voidable at the instance of the party defrauded. The judicial act may be impeached on the ground of fraud or collusion in an active proceeding for recission by way of suit. The defrauded party may also apply for review of the judgment to the court which pronounced it. But the judgment may also be impeached in a collateral proceeding in which fraud may be set up as a defence to an action on the judgment or as an answer to a plea of estoppel or res judicata founded upon the judgment.

These two cases were referred with approval by Willes, J. in -- "Queen v. Saddler's Co.', (1863) 10 HLC 404 at p. 431 (Y), where he said;

"a judgment or decree obtained by fraud upon a Court binds not such Court nor any other; and its nullity upon this ground, though it has not been set aside or reversed, may be alleged, in a collateral proceeding."

These cases demonstrate the principle that though a judgment is only voidable for fraud and though no suit has been brought to set it aside the judgment can be impeached in a collateral proceeding by a party who has suffered on account of the fraud.