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Issues: Whether the suit, in substance one to set aside a fraudulent mortgage decree and the sale held in execution thereof, was governed by Article 95 of the Limitation Act and barred by limitation, or could be treated as a mere declaratory suit so as to attract Article 120 of the Limitation Act.
Analysis: The decree obtained in execution of the mortgage suit was found to be tainted with fraud, but it was passed by a court of competent jurisdiction and therefore was not a nullity. A decree so obtained is voidable and continues to bind the parties unless and until it is avoided in appropriate proceedings. The challenge to the sale could not succeed without first removing the decree that supported it. The plaintiffs were parties to the transaction and, on the findings recorded, had knowledge of the decree and sale more than three years before instituting the suit. On that footing, the proceeding was in substance one for setting aside the decree and sale, and the period of three years from knowledge governed it. The attempt to recast the suit as a mere declaration that the decree and sale were not binding was not accepted.
Conclusion: The suit was barred by limitation under Article 95 of the Limitation Act and could not be maintained as a declaratory suit under Article 120 of the Limitation Act.
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