The High Court held that the merits of a decree from an earlier suit cannot be tested in a second appeal where the challenged decree was based on a fraud argument that was not substantiated as a separate question of law.
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Court No. - 4
Case :- SECOND APPEAL No. - 657 of 2021
Appellant :- Tasleem Fatima And Another Respondent :- Smt Kailashi Devi And Another Counsel for Appellant :- Satya Priya Upadhyay,Kamlesh Kumar Tiwari Counsel for Respondent :- Viveka Nand Rai
Hon'ble Salil Kumar Rai,J.
The present second appeal has been filed challenging the judgement and decree dated 5.11.2018 passed by the trial court dismissing the Original Suit No. 117 of 2011 as well as the judgement of the lower appellate court afÏrming the decree of the trial court.
Original Suit No. 117 of 2011 was instituted praying to cancel the decree passed by the courts below in Original Suit No. 172 of 2008 on the ground that the said decree was obtained by practising fraud on the trial court.
The substantial questions of law framed in the present second appeal do not relate to any incident of fraud practised on the trial court in decreeing Original Suit No. 172 of 2008 and any non-consideration or misreading of any evidence filed by the plaintiff in the trial court in Original Suit No. 117 of 2011.
The substantial questions of law framed by the appellant in the present second appeal relate to the merits of the judgement and decree passed by the trial court in Original Suit No. 172 of 2008. The merits of the decree passed by the trial court in Original Suit No.172 of 2008 can not be tested in the present proceedings and in the present second appeal.
The second appeal is dismissed .
Order Date :- 2.3.2022 Anurag/-
Digitally signed by ANURAG KUMAR VERMA Date: 2022.03.02 15:02:04 IST Reason: Location: High Court of Judicature at Allahabad
1 issue framed by the court
Whether the merits of the judgment and decree in Original Suit No. 172 of 2008 can be tested in the second appeal against the dismissal of a suit seeking cancellation of that decree on grounds of frau
Tasleem Fatima And Another
Smt Kailashi Devi And Another
Salil Kumar Rai
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
