1. Two objections are taken to the decree of the District Judge. First, it is argued that the Judge was wrong in disposing of the case at the first hearing, inasmuch as the plaintiff’s pleader objected (Section 154 proviso of the Civil Procedure Code). The pleader has put in an affidavit in support of his assertion. We see no reason why we should not accept this affidavit, and must hold therefore that the Judge was not justified in acting under Section 154.
2. It is further contended that the plaint discloses a sufficient cause of action. We think that this is so. Reading together paragraphs 3 and 11 it appears that the plaintiff charges that first defendant fraudulently obtained a decree in Original Suits Nos. 13 of 1887 and 19 of 1888, the second defendant having colluded with him and assisted him to obtain that decree by giving evidence which plaintiff is in a position to prove false. There is no question of res judicata if the plaintiff can prove that the decree in the former suit was obtained by fraud and collusion and Section 44 of the Evidence Act does not bear the construction put upon it by the Judge.
3. The plaint discloses a cause of action, and we must set aside the decree of the District Judge and remand the suit to be heard and determined on its merits. Costs hitherto incurred to abide result.