JUDGMENT This appeal is against a judgment of affirmation. The plaintiff instituted the suit for a declaration that the decrees in Title Suit No. 2 of 1969 and the decree of dismissal on appeal in Title Appeal No. 1113 of 1971 dated 7.9.71 and 30.3.72 respectively were fraudulent, null and void and not binding on him. There are other incidental prayers for injunction restraining the defendant from taking any steps for executing the decree for costs or from making the preliminary decree final or from executing the decree if made final. 2. It appears that the defendant filed Title Suit No. 2 of 1969 in the Third Munsif's Court at Alipore against the plaintiff for partition of the suit property claiming his eight annas share therein. The suit was contested by the defendant who is the appellant before me contending that he is the owner of sixteen annas share in the property. The suit, however, was decreed and an appeal therefrom was dismissed. It appears that in the appeal an application was filed by the present appellant under order 41 rule 27 of the CP Code for admission in evidence of certain documents but the prayer was rejected by the said appellate court. 3. The plaintiff thereafter has brought the present suit alleging that the defendant, who was the plaintiff in the aforesaid partition suit, had suppressed certain documents of title from court which would show that he had no share at all in the suit property. It is stated that by reason of the said suppression a fraud was committed which entitled the appellant to institute the connected suit for setting aside the decrees in the partition suit and the appeal therefrom. Reliance was placed on section 44 of the Evidence Act which provided that any party in a suit or proceeding may show that a judgment, order or decree relevant under section 40, 41 and 42 was delivered by a court not competent to deliver it or was obtained by fraud and collusion. 4. The Trial Court dismissed the suit holding that the suit was barred by res judicata and the said decree has been affirmed on appeal. The present appeal is by the plaintiff in the suit who was the defendant in the partition suit against the aforesaid decision. 5. Mr. 4. The Trial Court dismissed the suit holding that the suit was barred by res judicata and the said decree has been affirmed on appeal. The present appeal is by the plaintiff in the suit who was the defendant in the partition suit against the aforesaid decision. 5. Mr. Sengupta appearing for the appellant relied on section 44 of the Evidence Act and submitted that in view of the fraud committed by the respondent he was entitled to the relief claimed in the suit, namely, for setting aside the decrees passed in the partition suit. He referred to the decision in (1) Beli Ram & Bros. v. Mohd, Afzal, AIR 1948 PC 168 in which it was held that if the previous suit was not brought by the guardian of the minors bona-fide but was brought in collusion with the defendant and the suit was a fictitious suit, a decree obtained therein is one obtained by fraud and collusion within the meaning of section 44 of the Evidence Act and such decree would not operate as res judicata. He also referred to the decision in (2) Mahesh Chandra v. Manindra Nath, AIR 1941 Cal. 401 in which it was held that when there was gross and palpable negligence of guardian-ad-litem resulting in a decree adverse to the minors, the minors could sue to set aside the decree and neither section 2 and section 44 of the Evidence Act, nor section 11 of the Code of Civil Procedure barred such a suit. He also referred to the decision in (3) Syed Shah Gulam v. Syed Shah Abdul, AIR 1959 A.P. 212 . In this case it was held that a decree can always be impeached on the ground of fraud. Whether it is by consent, exparte or on contest. 6. The question material for consideration here is whether a decree obtained by the respondent was through fraud. In this case it was held that a decree can always be impeached on the ground of fraud. Whether it is by consent, exparte or on contest. 6. The question material for consideration here is whether a decree obtained by the respondent was through fraud. Fraud has not been defined but it appears from section 17 of the Contract Act that any of the following acts committed with the intent of deceive another party to induce him to enter into the contract would be fraud, namely, (1) the suggestion, as a fact, of that which is not true by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; and also, inter alia, (3) any other act committed to deceive or any act or omission as the law specifically declares to be fraudulent. In the instant case the respondent filed a partition suit on the basis of certain claims made by him. The appellant as defendant in that suit filed his written statement and defended the suit and further there was a contested hearing on evidence. On the evidence there was a judgment adverse to the appellant. The appellant thereafter preferred an appeal and also sought to introduce as additional evidence certain documents which was, however, not allowed. The appellate court on the materials dismissed the appeal. In this state of affairs, it is not possible to hold that there was any fraud committed by the respondent on the appellant in respect of the proceedings in the suit. There was no direct inducement or representation by the respondent of any Let to the appellant and the respondent on the basis of his pleadings asked for adjudication in a competent court of his rights in the properties in suit. The appellant who suffered from no disability had availed of the full and ample opportunity to contest the claim which he did by filing written statement and also adducing evidence in support of his case and there was also a contested trial where the witnesses were examined and cross-examined. Thereafter the judgment followed decreeing the suit which the appellant thinks is adverse to his right. The appellant thereafter preferred an appeal and also sought to adduce addition evidence which was not permitted. Thereafter the judgment followed decreeing the suit which the appellant thinks is adverse to his right. The appellant thereafter preferred an appeal and also sought to adduce addition evidence which was not permitted. Thereafter the decree of the appellate court followed, where it rested as no other steps were taken by the appellant. In this state of affairs, it is impossible to hold that there was any fraud committed by the respondent on the appellant which would entitle the court to interfere with the decrees passed in the earlier proceedings. The provisions of section 44 have no application and in this state of affairs it must be held that the suit giving rise to this appeal was not maintainable on facts and also being barred under the provisions of section 11 of the Code of Civil Procedure. The appeal, in the circumstances, fails and is dismissed. There will be no order as to costs.