JUDGMENT The defendants in O.S. No. 275 of 1987 on the file of the learned Additional Judge, City Small Causes Court-cum-VIth Additional Judge, City Civil Court, Hyderabad, preferred this appeal against the decree and Judgment dated 08-09-1998, cancelling the earlier decree obtained in O.S. No. 1265 of 1984, dated 30-06-1986 with costs. 2. The parties are described as arrayed in the suit for felicity of expression. 3. It is the case of the plaintiff-M.D. Savani, respondent herein, that he purchased a site covered by premises bearing Municipal No. 14-3-251/1, admeasuring 1289 square yards, situated at Gosha Mahal, Begum Bazar, Hyderabad, under a registered sale deed, dated 10-05-1960, from the defendant for consideration and since then he has been in possession of the property wherein he constructed a building surrounded by compound wall. He leased it out to M/s. Savani Transport Private Limited (for brevity "S.T.P.L."), in which, he was also a Director initially on a rent of Rs.500/- per month and later of Rs. 1,0001- per month. When the said Company committed default in payment of rent, he took appropriate steps for eviction. The defendant is his second cousin. Their paternal grandfathers are brothers. As such a number of business concerns were carried on by their family members which were in the nature of partnerships, trust etc., in 1982-83 certain disputes and misunderstandings arose between them and their family members. In order to keep good relations, several internal arrangements were made and various documents were executed between them. It was stipulated that he (the plaintiff) should give up his interest at Hyderabad and properties including the suit property and he and his family would be suitably compensated in order to avoid heavy costs and expenses for execution, registration etc. It was suggested that he should sign a plaint for cancellation of the sale deed dated 10-05-1960 relating to suit property provided he were to be compensated appropriately. In 1984 the value of the suit property was Rs.15,00,000/-. Accordingly, he signed the plaint and Vakalat on 29-09-1984. Accordingly, above papers were handed over to the defendant, who, told him that he would engage Sri Balachand, Advocate. It was only a make believe transaction never intended to contest. Simultaneously, a memo was also drafted. In view of the relationship between them, he never thought that the defendant would proceed to file the plaint without informing him. Accordingly, above papers were handed over to the defendant, who, told him that he would engage Sri Balachand, Advocate. It was only a make believe transaction never intended to contest. Simultaneously, a memo was also drafted. In view of the relationship between them, he never thought that the defendant would proceed to file the plaint without informing him. He was totally unaware of the subsequent events. Later, he came to know that the defendant filed this plaint numbered it as O.S. No. 1265 of 1984 on the file of the learned 1st Additional Judge, City Civil Court, Hyderabad and the same was decreed. It was communicated by the defendants son on 22-12-1986. Thereupon, he addressed a letter to Sri Balachand to inform about the proceedings. On that he could know that one Govind Bangdla, Advocate, attached to the office of Sri Balachand, filed the plaint and Sri K.K. Waugh ray, advocate, appeared on behalf of the defendant, filed written statement almost admitting the plaint allegations. In fact, the very plaint shows that it was barred by limitation. When he addressed a letter, he received certified copies of the proceedings. The decree was obtained by misrepresenting the facts and playing fraud on him. The 170 defendant obtained the decree in O.S.No.1265 of 1984, cancelling the sale deed in his favour. Therefore, he filed the suit for cancellation of the decree in O.S.No.1265 of 1984, dated 30-06-1986 and for injunction not to act on the said decree. 4. The 151 defendant resisted that suit denying that there was a stipulation as pleaded by the plaintiff that he should give up his interest and business etc., in Hyderabad. He stated that he has executed a sale deed in favour of the plaintiff for consideration of Rs. 35,0001- under registered sale deed dated 10-05-1960. In fact, the very plaintiff initiated the proceedings in O.S.No. 1265 of 1984. The plaintiff was well educated and he knew the entire proceedings. He signed the plaint and Vakalat at Hyderabad. He was one of the directors of M/s. Savani Transport Private Limited. The proceedings in R.C.No.80 of 1997 on the file of the learned IInd Additional Rent Controller. Hyderabad, reveal the real nature of the proceedings. The suit in O.S. No. 1265 of 1984 was decreed on contest cancelling the document. No fraud was played in getting the decree. He was one of the directors of M/s. Savani Transport Private Limited. The proceedings in R.C.No.80 of 1997 on the file of the learned IInd Additional Rent Controller. Hyderabad, reveal the real nature of the proceedings. The suit in O.S. No. 1265 of 1984 was decreed on contest cancelling the document. No fraud was played in getting the decree. He cannot plead that the suit was barred by limitation. Therefore, he prayed for dismissal of the suit with costs. 5. During the pendency of the suit, the sole defendant died, his Legal Representatives are added as D-2 to D-4. 6. Upon the pleadings, the trial Court framed the following issues: 1. Whether the decree in O.S.No. 1265 of 1984 is vitiated by fraud and misrepresentation and is non est and unexecutable? 2. Whether the plaintiff is estopped from questioning decree in O.S.No.1265 of 1984 and is bound by it? 3. Whether the plaintiff is entitled to cancellation of decree and consequential injunction? 4. To what relief? 10. In the light of the submissions, the following are the points that arise for consideration: 1. Whether the defendant played fraud in securing the decree in O.S. No. 1265 of 1984? 2. Whether the plaintiff is entitled for cancellation of the decree? 11. It is an admitted fact that P.W.1, the very plaintiff, purchased the plaint schedule property for Rs. 35,000/- under registered sale deed Ex.A-1, dated 10-05-1960, from D-1, who in-turn purchased it form one Mandoor Khan. It is also not in dispute that the plaintiff and defendant originally belong to a joint family running various business concerns, one of which was S.T.P.L. While the plaintiff was one of the directors, the defendant was the Managing Director. The plaintiff leased out the said premises to very S.T.P.L. on payment of Rs.1,000/- per month. In the very plaint, P.W.1 alleged which is reproduced herein for appreciation of plea of fraud, "the defendant is the second cousin of the plaintiff. The paternal grand father of the plaintiff and the paternal grand father of the defendant being real brothers. Various businesses and ventures were carried on by the plaintiff and the family of the plaintiff, and the defendant, his brother and other family members, children etc., of the defendant and his brother. The said businesses and ventures were in the nature of partnership, trusts etc., and some of which were with outsiders also. Various businesses and ventures were carried on by the plaintiff and the family of the plaintiff, and the defendant, his brother and other family members, children etc., of the defendant and his brother. The said businesses and ventures were in the nature of partnership, trusts etc., and some of which were with outsiders also. The private limited company under the name and style of M/s. Savani Transport Pvt. Ltd., (S.T.P.L.) was also a family concern of the parties. Unfortunately, in the year 1982-83 certain disputes and misunderstandings arose between the plaintiff, and defendant and their family members. It was then agreed that so as to keep good relations, image, prestige, reputation and their business in-tact, certain internal arrangement should be made for distribution of the property in equitable manner, acceptable to all concerned. So as to enable such settlement, various documents were executed between the parties and their families. It was stipulated that the plaintiff should give up his interest in Hyderabad, business and properties in Hyderabad including the suit property (though the suit property always belonged to the plaintiff), and the plaintiff and his family would be suitably compensated otherwise. So as to enable the settlement, since the suit property was in the name of the plaintiff and belonged to the plaintiff, it was agreed that suitable documents should be executed so as to avoid heavy costs and expenses in their execution, registration etc., which expenses were to be borne by the defendant; so that the suit property would go over to the defendant at the time of proper settlement of the various interests of both the parties and their families in the various businesses an when the plaintiff is suitably compensated there for." 12. Obviously, based on the said understanding, P.W.1 filed O.S.No. 1265 of 1984 for cancellation of the sale deed. Admittedly, the Andhra Pradesh Housing Board had initiated proceedings for his eviction from the suit house claiming that the property belonged to it. An order of eviction was passed. Necessarily, the plaintiff has-to fight out the said litigation. There was a mention that an appeal was pending before the Additional Chief Judger, City Civil Court, against the action of eviction. On that the plaintiff apprehended that litigation and informed the defendant to cancel the sale deed as there was a cloud cast on his title. Necessarily, the plaintiff has-to fight out the said litigation. There was a mention that an appeal was pending before the Additional Chief Judger, City Civil Court, against the action of eviction. On that the plaintiff apprehended that litigation and informed the defendant to cancel the sale deed as there was a cloud cast on his title. He could not have taken risk for the development of the property at a heavy cost. Therefore, he wanted cancellation of the sale deed as much as a could was cast on the title of the property. 13. D-1 herein, since died, filed written statement vide EX.C-3 alleging that the property was purchased by himself from one Mandoor Khan and the plaintiff having satisfied about the genuineness of the sale, took sale deed from him. He further stated that the Additional 172 Chief Judge, City Civil Court, remanded the matter back to the competent authority for consideration. However, he stated that he has no objection for cancellation of the said deed and he was agreeable to pay the refund of sale consideration. 14. Based on the pleadings, the following issues were framed: 1. Whether the plaintiff is entitled for cancellation of sale deed? 2. To what relief? 15. Based on the admission made by the very parties, a decree for cancellation was passed directing the Registrar of Assurance and Registration to make necessary entries. 16. Importantly, the trial Court observed that "there was a cloud on the title of the defendant and the plaintiff was landed with the litigation. In the light of his own request, the sale deed was cancelled." The judgment was pronounced on 30-06-1986, followed by a decree. 17. The plaintiff, six months thereafter, turned round and filed the present suit for cancellation of the decree on the ground that the defendant played fraud on him, obtained his signature on plaint as well as Vakalat on 29-12-1984. He was not aware whom the defendant has engaged. He informed that Sri S. Balachand, Advocate, was his advocate. Thinking that the said plaint would be filed only after he was suitably compensated for the suit property with the distribution of properties in the final of partition in their family he had signed in it. In good faith, he handed over the plaint, vakalat etc, to the defendant. He informed that Sri S. Balachand, Advocate, was his advocate. Thinking that the said plaint would be filed only after he was suitably compensated for the suit property with the distribution of properties in the final of partition in their family he had signed in it. In good faith, he handed over the plaint, vakalat etc, to the defendant. He was under the impression that "the said plaint was never presented as it is agreed that it was presented only after settlement. Later when the defendant sent EX.A-1 dated 15-12-1986, he came to know that a decree was passed. Then he addressed a letter to his Advocate Sri Balchand. However, he received a letter from Govind Bhagdia on 12-01-1987 that he was his advocate and the suit was decreed on 30-06-1986 and he enclosed certified copies of decree and judgment. Since he was not aware such a plant was presented and a decree was passed, it amounts to misrepresentation and fraud. It must be stated herein, the plaintiff did not file suit for the amount which he was entitled under settlement, as substantially the respondent acted as per the wishes of the plaintiff instead he had chosen this course. 18. The defendant denied the facts of obtaining the signatures of the plaintiff on the plaint and vakalat at Bombay nor informing that he entrusted the matter to one Balachand, Advocate. He also denied having a compromise memo, which was agreed to be filed only in the event of settlement of the property. Since the very plaintiff was one of the directors of the S.T.P.L., it does not lie in his mouth, to make such a statement. The suit was filed in order to avoid further bitterness and kept relation between them. The plaintiff being a party to the proceedings cannot contend that there was fraud or misrepresentation on his part. 19. The trial Court deduced the fact of fraud from the fact that the plaintiff signed in the plaint and vakalat at Bombay in the presence of some advocate Sri P.P. Joshi, before whom the defendant also signed in the written statement at Bombay and Sri KK Waghray filed vakalat and written statement in the Court even at the stage of receipt of summons in Court. 20. It is undisputed fact that the plaintiff purchased plaint schedule property from the defendant. 20. It is undisputed fact that the plaintiff purchased plaint schedule property from the defendant. The plaintiff did not dispute as alleged in the earlier plaint in O.S.No. 1265 of 1984, that the Housing Board has initiated proceedings against him for eviction, and was pending before the Additional Chief Judge, City Civil Court, Hyderabad. P.W.1 is admittedly a resident of Bombay whereas the properties are situated in Hyderabad. 21. Even otherwise in the very plaint in O.S.No. 275 of 1987, he alleged that certain 73 disputes and misunderstandings arose between their family members and that "there was certain internal arrangements were made for distribution on various properties." He stated that "So as the enable such settlement, various documents were executed between the parties and their families. It was stipulated that the plaintiff should give up his interest in Hyderabad business and in Hyderabad, properties including the suit property (though the suit property always belonged to the plaintiff), and the plaintiff and his family would be suitably compensated otherwise. So as to enable the settlement, since the suit property was in the name of the plaintiff and belonged to the plaintiff, it was agreed that suitable documents should be executed so as to avoid heavy costs and expenses in their execution, registration etc., which expenses were to be borne by the defendant; so that the suit property would go over to the defendant at the time of proper settlement of the various interests of both the parties and their families in the various businesses and when the plaintiff is suitably compensated there for. 22. Obviously, the plaintiff having satisfied with the above arrangement signed the plaint for cancellation of sale deed dated 10-05-1960 relating to the suit property on the advice by the counsel. This method was adopted so as to avoid heavy costs and expenses. 23. I reiterate that reading of the pleading shows that the plaintiff in order to avoid payment of registration charges and expenses, had taken a short cut method, by getting the sale deed cancelled so that the title would remain with the defendant. 24. A reading between the lines or for that matter a bare reading itself would undoubtedly disclose that both of them intend to utilize the process of the Court to achieve the above said transfer. 24. A reading between the lines or for that matter a bare reading itself would undoubtedly disclose that both of them intend to utilize the process of the Court to achieve the above said transfer. The plaintiff not only understood the mechanics of this process, but also signed the plaint and vakalat, obviously at Bombay. It might be that they were handed over to the defendant. The very defendant who was equally 17 at Bombay by then signed his written statement in the presence of the very same advocate, who attested the vakalat EX.C-3 as well as the written statement of the defendant. By then, there were no disputes between them. They intended this to be acted upon, but for which they could not have signed vakalats. 25. Though the plaintiff alleges that he was not aware as to whom the defendant engaged on his behalf and that there was misrepresentation that he would engage Sri S. Balachand, Advocate, but, another advocate by name G. Vagwia filed vakalat on his behalf and when he addressed a latter to him after coming to know that the suit was decreed etc., they were not proved. 26. From these facts, one cannot deduce that the defendant has played fraud. The plaintiff could have examined the advocates or correspondence that was made between them in order to prove that fraud was played on him. As I could see from the pleadings, settlement in regard to properties was made but he did not receive the amount pertaining to the suit property. This he assumes as fraud. I reiterate that in the very plaint, he stated that "However, It was never intended to be contested and only it was intended to be used as documentation to transfer the suit property, in the event of the suit property being allotted to the defendant in the distribution, subject to payment of appropriate compensation to the plaintiff relating to the suit property." 27. To further impress, he alleged that a compromise memo was drafter and handed over to the defendant. He could have examined Joshi, the advocate, who attested and was present at the time of these transactions. A plea of fraud cannot be inferred by deducing from the facts, which are not admitted. It is too hazardous to come to such a conclusion merely on unsubstantiated averments made by the plaintiff. 28. He could have examined Joshi, the advocate, who attested and was present at the time of these transactions. A plea of fraud cannot be inferred by deducing from the facts, which are not admitted. It is too hazardous to come to such a conclusion merely on unsubstantiated averments made by the plaintiff. 28. It is not as though the plaintiff was not aware of the implications. He himself admitted that "I signed the plaint in O.S.No. 1265 of 1984 at Bombay. I signed the plaint in September, 1984. I handed over the plaint to M.V. Savani. There is an understanding between me and M.V. Savani to file O.S. No. 1265 of 1984 with regard to compensation payable to me by setting the terms among themselves. I have not given any notice stating that no compromise arrived at with regard to compensation payable to me by M. V. Savani." He further admitted that "I know the advocate who attested my signature in the vakalath. I know the written statement filed by M.V. Savani in O.S.No. 1265 of 1984 in December. I have not taken any steps after coming to know the reply filed by M.V. Savani in O.S.No. 1265 of 1984 in December, 1984." 29. I fail to understand what was the fraud played by defendant in filing the suit, which he wanted to file. 30. D.W.1, D-3 in the suit, is the son of the original defendant, against whom the plea of fraud was not made. When he deposed from his knowledge, the trial Court took it as admission by the very defendant and concluded that there was fraud. 31. When D.W.1 was cross examined, it was suggested that "the plaint in O.S.No.1265 of 1984, the vakalat of the plaintiff and other papers were kept with Mr. P.P. Joshi, Advocate at Bombay, pending settlement between the plaintiff and the defendant. It is not true to suggest that the papers were to be filed only after the settlement terms are arrived at." When such suggestions were made, it is incumbent for plaintiff to prove the said fact in order to see whether fraud was played in the entire transaction. 32. According to the plaintiff, when the defendant sent a cheque for Rs. 35,000/-, the value of the properly which he made in the plaint, he came to know that the decree was passed. The defendant had sent the cheque for Rs. 32. According to the plaintiff, when the defendant sent a cheque for Rs. 35,000/-, the value of the properly which he made in the plaint, he came to know that the decree was passed. The defendant had sent the cheque for Rs. 35,000/- through Ex.A-6, letter, which the defendant (sic. plaintiff) returned under 17 EX.A-? This amount according to the defendant is the consideration under sale deed. Now the plaintiff contends that the property is worth Rs. 15,00,000/- and the amount offered was far below and the plaintiff could not have accepted such terms. Moreover, there was no direction in the Judgment to pay that amount. There is no evidence as to the value of the property. Even if the amount was not paid, the plaintiff did not venture to spell out as to exact settlement in regard to the properties. It is not known what was the settlement arrived at in regard to the properties so that it could be known whether the plaint could not have been presented till settlement was arrived at. The pleading is altogether different from the evidence let in by him. When the very plaintiff agrees for such a course for cancellation of the document, he cannot turn round and allege there was misrepresentation or that fraud was played on him. Obviously, the plaintiff knew full well that he intended the proceedings in the Court, to achieve the object of cancellation of the document by playing fraud on the Court as though there was dispute. The defendant also joined for such a course. 33. When 90th parties knew of the illegality at the time of the agreement was made and were in pari delicto, the plaintiff is not entitled to question the proceedings by turning around and plead that fraud was played on him, he himself being a party to the fraud. The Court does not assist the person who come with unclean hands. It is not a case where the defendant possesses an undue advantage overt he plaintiff, he tendered the consideration under the sale deed. It is for the plaintiff to claim amount on the ground that the amount offered is far below than the settlement arrived at between them. 34. The learned counsel for the respondent plaintiff contended that the trial Court ought to have considered that the earlier suit filed by the defendant (sic. It is for the plaintiff to claim amount on the ground that the amount offered is far below than the settlement arrived at between them. 34. The learned counsel for the respondent plaintiff contended that the trial Court ought to have considered that the earlier suit filed by the defendant (sic. plaintiff) was barred by limitation and the Court ought to have dismissed by recoursing to Section 3 of the Limitation Act. It is the duty of the Court to see whether at is brought before it is barred under the provision of Limitation Act. There is no need for the parties to plead the said aspect. 35. The Courts have consistently held that it is the duly of the Courts to see whether the suit was barred by Limitation or not re-coursing to Section 3 of the Limitation Act. However, non consideration of the said question may render judgment bad in Law, nevertheless holds good till it is set aside or corrected as per the procedure contemplated under Law. 36. Considering these aspects, the Supreme Court in Ittyavira Mathai v. Varkey Varkey and another1 observed that: "Where a Court having jurisdiction over the subject matter and the parties, passes a decree, even if the suit was barred by time, such decree cannot be treated as a nullity and be ignored, as although the Court is bound to decide right, may decide wrong even though it decides wrong, it would not be doing something which it had no jurisdiction to do. The remedy of the aggrieved party was to get the decree set aside by preferring an appeal against it. It is no doubt true that Section 3 of the Limitation Act is peremptory in nature and enjoins a duty upon the Court to dismiss an application or suit filed after the period of limitation, it does not say that the Court shall not entertain them, and where the Court does pot give effect to the rule of limitation and thus fails to perform its duty, it cannot be said that the Court acted without jurisdiction. In that event, it commits an error of law can be corrected only in accordance with the remedies provided under the procedural law. A judgment or order may be bad in law but until and unless it is set aside, it will hold good and would be operative and binding on the parties. In that event, it commits an error of law can be corrected only in accordance with the remedies provided under the procedural law. A judgment or order may be bad in law but until and unless it is set aside, it will hold good and would be operative and binding on the parties. No decision taking a contrary view was citied by the learned counsel for the respondents." It has been held that if it is a mixed question of fact and law, a party would not be allowed to raise it later on, in case such an objection was not raised at the earliest. 37. Following the above decision, in Thakur Pandey v. Bundi Ojhc2, where a final decree was passed much beyond the period of three years from the date of preliminary decree passed, held that the application though barred by limitation does not render final decree passed by Court is void and without jurisdiction. It has relied earlier decision of the said Court in Bhaiga Parida v. Gannath Khandal3.ltwas a case where final decree was passed beyond the period of 3 years and in execution of the decree the property was sold. A suit was instituted by the judgment-debtor to challenge the same on the ground that the decree was obtained by fraud, It was held that merely because the decree was passed beyond the period of limitation, could be no ground for setting it aside and, in any event, the suit for the said purpose was not maintainable. The remedy of the judgment-debtor was to make an application within a period of 30 days from the date of his knowledge of the sale. It was further held that question of limitation was not a question of jurisdiction. 38. In Food Corporation of India and others v. M/s. Babulal Agrawa/4, the period of limitation was raised for the first time before the Supreme Court. Referring to Section 3 of the Limitation Act, their Lordships held that: "In connection with this objection regarding limitation, learned counsel for the plaintiff has submitted that no such plea was ever raised by the defendant nor any facts or reasons were indicated as to in what manner the suit was barred by limitation. No issue was framed on the question of limitation. That point was not a raised even in the High Court nor in this Court too. No issue was framed on the question of limitation. That point was not a raised even in the High Court nor in this Court too. It is only in the list of dates/synopsis it is vaguely stated that the suit was time barred. Learned counsel for the defendant-appellant, however, relying upon Section 3 of the Limitation Act submits that it was the duty of the Court to see as to whether the suit was within limitation or not. Acetified beyond limitation is liable to be dismissed. Even though limitation may not be set up as a defence, the above position as provided under the law cannot be disputed nor it has been disputed before us. But in all fairness it is always desirable that if the defendant would like to raise such an issue, he would better raise it in the pleadings so that the other party may also note the basis and the facts by reasons of which suit is sought to be dismissed as barred by time. It is true that the Court may have to check at the threshold as to whether the suit is within limitation or not. ....... It is quite often that question of limitation involves question of facts as well which are supposed to be raised and indicated by the defendant. ........... The trial Court may not find the suit to be barred by time and proceed with the case but in that event the Court would not be required to record any such finding unless any plea is raised by the defendant." 39. The learned counsel also relied Syed Jalaluddin Hasan Quadri, v. M/s. Tara Pharmacy rep. by its Managing Partner, Tarchand Agarwal wherein the proposition that Court is bound to dismiss the suit filed beyond the limitation was reiterated. 40. He further contended that in the earlier suit, decree though passed on admission, still the Court is bound to consider the question of Limitation. In support of his contention, he relied V.M. Salgoacar and Bros. v. Board of Trustees of Port of Mormugao6. There the dispute was in regard to the refusal of rebate of corresponding levy of surcharge to the extent of Rs. 55,36,71 0,10. The party agreed to pay Rs. 7 ,09,835. In support of his contention, he relied V.M. Salgoacar and Bros. v. Board of Trustees of Port of Mormugao6. There the dispute was in regard to the refusal of rebate of corresponding levy of surcharge to the extent of Rs. 55,36,71 0,10. The party agreed to pay Rs. 7 ,09,835. In spite of such admission, it was held that parties right to questioning maintinabaility of suit under a particular Statute, and bar of Limitation will not be affected. It was in the same proceedings. I do not see how the said decision is applicable to the instant case. It is beside the point. 41. Indisputably the plaintiff did not file any appeal against the decree and judgment in O.S.No. 1265 of 1984, on the ground that it was barred by limitation, at least, after coming to know that the suit was decreed against him. There was no reason for such a course not to be taken. No plea of limitation was raised by him in the said suit and he cannot turn round and contend that the Court ought to have taken the said plea. The Court is not bound to record any finding as was held by the Supreme Court in the above decision (citied 4 supra). It is too late a day to canvass the said question in this suit. The earlier Judgment cannot be set aside on the said ground. 42. The learned counsel for the respondent plaintiff contended that no settlement was arrived stand no money whatsoever was paid. Therefore, it would amount to playing fraud. The learned counsel for the appellant relied Amteshwar Anand. v. Virender Mohan Singh and others7 It was also a case where the disputes between the parties were set rest by a common decree. There the parties agreed certain amounts to he paid in future for relinquishment of rights. It was alleged that parties had made false representations to induce the applicant to enter into compromise. The basis cause was non-payment of amounts. In the context, it was held that mere non-payment of monies due under compromise decree, it cannot be inferred that there was fraud. 43. Even in the present case, the plaintiff alleges the same. Subsequent non adherence of settlement cannot be termed as fraud. 44. The basis cause was non-payment of amounts. In the context, it was held that mere non-payment of monies due under compromise decree, it cannot be inferred that there was fraud. 43. Even in the present case, the plaintiff alleges the same. Subsequent non adherence of settlement cannot be termed as fraud. 44. The learned counsel for the respondent plaintiff also relied a decision reported in Hurmathunnisa Begum v. Shamim Fatima Sultan and others8 and contended that a suit for cancellation of decree passed by Court on the ground that it was obtained by fraud is maintainable. The learned Judge on facts in the said suit opined that: "Fraud to avoid a judgment, must be of the person who secured the judgment in his favour by means of such fraud unless it be a judgment in res available against all the world. It is true that fraud vitiated the most solemn proceedings of court of justice. It avoids all judicial acts. Statutory recognition is given to this principle in Section 44 of the Evidence Act. But, equally well settled is the principle that a judicial decision is conclusive inter parties on the mater decided; or, in other words, a matter decided is decided once for all. This principle of res judicate also finds statutory expression in Section 11, Code of Civil Procedure. These two principles have to be reconciled in their application in practice. Fraud to be a ground for vacating a judgment must be extrinsic or collateral to the adjudications involved in the judgment and not been, or deemed to have been, dealt with by the court in the impugned judgment. 45. Evidently, the plaintiff intended that the sale deed obtained by him from the defendant to be cancelled as there was cloud cast on the title. He does not want to fight in Courts at Hyderabad since he is a resident of Bombay. The parties are cousins inter se. Besides, there was a settlement not only in regard to suit property, but also in regard to various concerns. One of the mode of conveying the property was, according to the plaintiff, to cancel the sale deed so that the title in favour of the defendant would be retained. He is a businessman and well educated. Knowing fully the implications, he signed the plaint, vakalat and got it filed. Now he pleads innocence. He alleges that all this is fraud. He is a businessman and well educated. Knowing fully the implications, he signed the plaint, vakalat and got it filed. Now he pleads innocence. He alleges that all this is fraud. The fact remains that there was no misrepresentation or fraud on him to take this recourse. No fraud was played by anyone on him. None had deceived him. Both the parties, intending to achieve their object, took this course, and the Court as an instrument. The facts do not lead to a conclusion that there was fraud. Therefore, I do not agree with the finding of the trial Court that fraud was played on the plaintiff for obtaining a decree. 46. In the result, the appeal is allowed, setting aside the decree and judgment in O.S.No. 275 of 1987 on the file of the learned Additional Judge, City Small Causes Court cum-VIth Additional Judge, City Civil Court, Hyderabad. Consequently, O.S.No. 275 of 1987 is dismissed. However, in the circumstances, each party do bear its own costs.