Kunhamed Vs. Kutti

Kunhamed vs Kutti

Type Court Judgment Court Chennai Decided Feb 13, 1891

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Citation: sooperkanoon.com/779523
Court: Chennai
Judge: Arthur J.H. Collins, Kt., C.J. and ;Parker, J.
Decided On: Feb 13, 1891
Subject: Property

Case Summary

AI-generated summary - not the official court judgment text.

Specific Relief Act--Act I of 1877, Section 42--Suit for declaration--Fraudulent decree--Injunction. -

Key legal issue: Property

Parties & Advocates

Appellant / Petitioner

Kunhamed

Respondent

Kutti

Legal References

Cases Referred: Dhuronidhur Sen v. The Agra Bank I.L.R.
Reported In: (1891)ILR14Mad167

Excerpt

specific relief act--act i of 1877, section 42--suit for declaration--fraudulent decree--injunction. - 1. we agree with the acting district judge that the suit is not properly one for a declaratory decree under section 42 of the specific relief act. the ground of action really is that the defendant by fraud has obtained an advantage in proceedings in a court having jurisdiction which must necessarily make that court an instrument of injustice and the remedy would appear to be by way of injunction to restrain the party from executing the decree. the court cannot itself be made a party to the suit--see dhuronidhur sen v. the agra bank i.l.r. 5 cal. 86; and references thereunder. daniell's chancery practice, 3rd edition, p. 1218 (4th edition, p. 1471). drury on injunctions, p. 96. story's equity jurisprudence, 899-900.2. we cannot allow the plaint to be amended, as to do so would change the character of the suit.3. the second appeal must, therefore, be dismissed with costs.

Full Judgment

1. We agree with the Acting District Judge that the suit is not properly one for a declaratory decree under Section 42 of the Specific Relief Act. The ground of action really is that the defendant by fraud has obtained an advantage in proceedings in a Court having jurisdiction which must necessarily make that Court an instrument of injustice and the remedy would appear to be by way of injunction to restrain the party from executing the decree. The Court cannot itself be made a party to the suit--see Dhuronidhur Sen v. The Agra Bank I.L.R. 5 Cal. 86; and references thereunder. Daniell's Chancery Practice, 3rd edition, p. 1218 (4th edition, p. 1471). Drury on Injunctions, p. 96. Story's Equity Jurisprudence, 899-900.

2. We cannot allow the plaint to be amended, as to do so would change the character of the suit.

3. The second appeal must, therefore, be dismissed with costs.

Same Parties Kunhamed vs Kutti Same Subject Property Same Judge Arthur J.H. Collins, Kt., C.J. and ;Parker, J.

Property Declaratory decree district judge To do so