1. We are of opinion that the plaintiff in this suit could not have been given a decree declaring that the decree in Original Suit No. 42 of 1909 was fraudulent and invalid without a prayer in his plaint for consequential relief. Vide Arunachalam Chetty v. Rangasamy Pillai 28 Ind. Cas. 79 : (1915) M.W.N. 118 : 17 M.L.T. 154 : 28 M.L.J. 118. The consequential relief necessary was an injunction restraining the 1st defendant (plaintiff in Original Suit No. 42) from executing his decree, vide Kunhamed v. Kutti 14 M. 167 : 1 M.L.J. 338. Whether the District Judge was right or wrong in thinking that he had no power to allow the plaintiff to amend his plaint in spite of the very wide language in which Order VI, Rule 17, Civil Procedure Code, is worded, we are clearly of opinion that the circumstances of the present case were not such as to warrant an indulgence.
2. They are, firstly, that having applied without success to have the ex parte decree against him set aside, he did not appeal against the rejection of his application when that course was open to him; secondly, that it appears from the temporary Subordinate Judge’s judgment that he was unwilling at the time of the trial of his suit to amend the plaint.
3. We must, therefore, dismiss this appeal with costs.