Authored By : Trevelyan, Banerjee

Trevelyan and Banerjee, JJ.

1. This was a suit brought by the plaintiffs-appellants fordeclaration of their title to, and for confirmation of their possession of,certain Immovable property after setting aside an ex parte decree and a sale inexecution thereof, on the ground of the decree and the execution sale beingfraudulent. The defence, which we need not here consider in detail, consistedin a denial of the plaintiffs allegations. The first Court found that thedecree in question was fraudulently obtained by the principal defendant againstthe plaintiffs, and that the sale in execution of such decree was alsofraudulent and invalid, and it accordingly decreed the suit.

2. On appeal by the defendant the Lower Appellate Court,without going into the merits of the case, has determined the suit as not"maintainable," relying upon the cases of Mohendro Narain Chaturaj v.Gopal Mondul I.L.R. Cal. 769 and Jagan Nath Gorai v. Watson I.L.R. Cal. 341.

3. In second appeal it is contented for the plaintiffs thatthis decision of the Lower Appellate Court is wrong, and that the cases citedare clearly distinguishable from the present, inasmuch as not only theexecution sale but the decree itself, in execution of which the sale tookplace, is here impeached on the ground of fraud.

4. We think the contention of the appellants is correct, andthat the case must go back to the Lower Appellate Court for trial on themerits.

5. In the cases relied upon by the Court of Appeal below ithas no doubt been held that a judgment-debtor, seeking to impeach an executionsale at which the decree-holder is the purchaser, must proceed under Section244 of the Code of Civil Procedure, and that that section of the Code bars afresh suit even when the sale is impeached on the ground of fraud. But thosecases do not warrant the view taken by the Court below that a suit is notmaintainable for setting aside, not only an execution sale, but also the decreeitself in execution of which such sale was held on the ground of the decree andthe sale being both fraudulent. On the other hand, we think there is ampleauthority in support of the view we take that such a suit would lie. In thecase of Nilmani Burnick v. Puddo Lochan Chuckerbutty B.L.R. Sup. 379 : 5 W.R.Act X, 20 which was a somewhat similar case, Sir Barnes PEACOCK, in deliveringthe judgment of the majority of the Full Bench, observed: "It is a causeof suit in the Civil Courts which have jurisdiction to administer the rules ofequity, justice and good conscience, to set aside decrees obtained by fraud andto restrain the parties to the fraud from reaping the fruits of it by enforcingsuch decrees." And the observation of Garth, C.J., in the case of EshanGhundra Safooi v. Nundamoni Dassee I.L.R. Cal. 357 may also be cited in supportof the same view.

6. It was argued for the respondents that, as thenon-service of summons is the only indication of fraud alleged in the plaint,the proper course for the plaintiffs was to proceed under Section 108 of theCode of Civil Procedure for setting aside the ex parte decree. But what isalleged in the plaint is not mere non-service but fraudulent suppression of thesummons and the causing of a false return of service to be filed. And withoutin any way dealing with the facts of the case, which we cannot do in secondappeal, or saying anything which would hamper the Court of Appeal below in thedecision of the case on its merits, we may here observe that there is amaterial difference between mere non-service or absence of due service ofsummons, which is the result of mistake or inadvertence and the suppression ofservice, and the causing of a false return of service which must be the resultof deliberate design.

7. Whether the decree sought to be set aside was obtained byfraud or not is a question of fact which it will be for the Lower AppellateCourt to decide. If it finds that the decree was fraudulently obtained, thesuit would lie. But if it does not find that the decree is tainted by fraud,then the suit will not be maintainable.

8. The result then is that the decree of the Lower AppellateCourt will be set aside, and the case remanded to that Court to be tried on itsmerits.

9. Costs will abide the result.

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Abdul Mazumdar and Ors. vs. Mahomed Gazi Chowdhry and Ors.(14.02.1894 - CALHC)