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The court of appeal below affirmed this finding and held that the defendants managed to get the decree by practising fraud on the court and on the mortgagor. But the learned Subordinate Judge, while recording this finding, remarked that there was no allegation of fraud in the plaint. On a reference to paragraph 10 of the plaint, al ready quoted, it is clear that, though the word "fraud" has not been used in the plaint in connection with the money decree or the sale held thereunder, yet all the material facts constituting fraud were stated.

"No suit to set aside an order made under this rule shall be brought by any person against whom such order is made."

It is thus clear that the sale must stand if the case be governed by any of the rules mentioned in Order 21, Rule 92, Clause (1).

9. The case before us cannot fall either under Rule 89 or Rule 91. The bar of the Rule can be attract-

ed only if the case falls under Rule 90. In my view, the provisions of Rule 90 also cannot apply because the sale is not challenged on the ground of material irregularity or fraud in publishing or conducting the sale. It is sought to be attacked on the ground of fraud in snatching a decree from the court and proceeding with the execution of it with which the sub-rule has no concern. According to both the courts below, there was no basis for the claim, firstly because the liability for the payment of rent was on the mortgagee, and secondly because the defendants failed to prove that the rent claimed by the landlords in the suits for arrears of rent was claimed at Rs. 23-7-3. The whole of the proceedings in execution, therefore, spring from a fraudulent decree pronounced, according to the findings of the courts below, by the fraud of the mortgagees. The decree thus obtained, therefore, can avail nothing for the defendants or against the plaintiff; and as the whole proceeding is fraudulent, there is nothing real either in the money decree or the sale held thereunder. The plaintiff can, therefore, treat the sale as a nullity and claim right of redemption. In

Upon a consideration of the evidence the learned Munsif found that the defendants had fraudulently obtained the money decree against the plaintiff, that the sale held in the execution was a result of fraud and that the plaintiff was entitled to be granted a decree for redemption.

In appeal the learned Subordinate Judge affirmed the findings of the Munsif. holding that the claim of the defendant in the money suit was dishonest and that the decree and the sale were fraudulent.

26. In second appeal the matter was argued before my Lord the Chief Justice and Reuben, J. in the first instance. The Chief Justice held that under Section 44, Evidence Act the plaintiff was entitled to show that the money decree and the sale in execution proceedings were vitiated by fraud and should be treated as nullity, and that the plaintiff was entitled to redeem. Reuben, J. however expressed a contrary view to the effect that the plaintiff cannot ignore the sale and redeem the mortgage on the ground that the decree in money suit was fraudulent. The learned Judge was of opinion that the money decree cannot be challenged in this suit since the period under Article 95, Limitation Act for setting it aside had expired. The learned Judge further held that Section 44, Evidence Act had no application and that the plaintiff cannot challenge the validity of the execution sale either on the ground of fraud in the execution proceedings or on the ground of fraud in obtaining the decree.

In -- '27 Cal 11 (J)', the plaintiff in a suit to recover possession of a tank adduced in evidence a petition of compromise and a, decree obtained upon it in a previous suit between the same parties relating to the same tank. The defendants stated that the decree was obtained by fraud and therefore was not binding upon him. Stevens, J. held that the case was concluded by the decree in the previous suit and so long that decree was not set aside either by proceedings duly taken in that suit or by a separate suit brought for the purpose, it was not open to the defendant to challenge it in any subsequent suit in which it was used as evidence against him. Against this decision the defendant preferred an appeal under Clause 15 of, the Letters Patent and it was held by Maclean, C. J. and Banerjee, J. that under Section 44, Evidence Act the defendant was entitled to show that the decree was obtained by fraud and the case was accordingly remanded.