Fraudulent decree and execution sale can be treated as nullities, allowing redemption without first setting them aside.

A decree or execution sale obtained by fraud may be collaterally impeached in a later proceeding and treated as a nullity. The court held that the mortgagor, who had no knowledge of the fraudulent decree and sale, was not barred from seeking redemption without first setting aside those transactions. The challenge was not treated as one confined by the rule governing attacks on execution-sale proceedings, because the complaint went to fraud in obtaining the decree itself and the resulting sale. Section 44 of the Indian Evidence Act permitted the fraud to be shown in answer to reliance on the earlier decree, and limitation did not defeat the collateral challenge. The redemption decree in favour of the mortgagor was sustained.

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Issues: Whether a mortgagor can ignore a money decree and execution sale alleged to have been obtained by fraud and seek redemption of the mortgage without first setting aside the decree or sale.

Analysis: The courts below found, on the evidence, that the mortgagee had fraudulently procured the money decree and the sale in execution, and that the mortgagor had no knowledge of those proceedings. The decision turned on whether such a fraud vitiates the decree and sale so that they may be treated as a nullity in a subsequent redemption suit. The majority held that the attack was not one governed by the bar relating to challenges to sale proceedings under Order 21, Rule 92 of the Code of Civil Procedure, 1908, because the complaint was fraud in obtaining the decree itself and in the resulting execution process. It was further held that Section 44 of the Indian Evidence Act, 1872 permits a party to show, in answer to a plea based on a previous judgment or decree, that it was obtained by fraud, and that the time limit in Article 95 of the Limitation Act, 1908 did not prevent such a collateral challenge in the redemption suit. On this view, the mortgagee could not take advantage of his own fraud, and the benefit of the execution sale was impressed with the mortgagor's rights.

Conclusion: The fraudulent decree and sale could be ignored as a nullity, and the mortgagor was entitled to redeem without first setting them aside.

Final Conclusion: The appeal failed, and the decree for redemption in favour of the mortgagor was sustained.

Ratio Decidendi: A decree or sale obtained by fraud may be collaterally impeached in a subsequent proceeding and treated as a nullity, so that the party defrauded need not first have it formally set aside when seeking relief inconsistent with that fraudulent transaction.

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