Authored By : Macpherson, T. Ameer Ali

Macpherson and T. Ameer Ali, JJ.

1. This suit has been dismissed without trial on thepreliminary issue as to whether it was maintainable having regard to theprovisions of Sections 13 and 244 of the Civil Procedure Code, and the factthat the plaintiffs applications for setting aside the decree and the saleunder Sections 108 and 311 of the Code were rejected.

2. The object of the suit is to set aside an ex-parte decreefor rent obtained by the first and second defendants against Ram KrishnaSarkar, seventh defendant, and the plaintiff, and to recover from the third,fourth and fifth defendants possession of a property of the plaintiffs whichwas sold in execution of that decree and purchased by them in the name of thesixth defendant. The plaint sets out that the plaintiff had nothing to do withthe jote in respect of which the rent was decreed, or with Ran Krishna Sarkar;that the suit was fraudulently brought at the instigation of the third, fourthand fifth defendants in order to get hold of the plaintiffs property at a lowprice, and that with a view to carry out the fraud no summons was served, and afalse return of (sic) service was caused to be given; that the defendants didnot proceed against the tenure for which the arrears were due or against theproperty of Ram Krishna, but fraudulently caused a very valuable property ofthe plaintiffs to be sold without service of any of the process required bylaw and by getting false returns of service submitted, and themselves purchasedit for a price much below its value. In short, the plaintiffs case is that thesuit culminating in the sale was from first to last a fraud, in which thedefendants who purchased and got possession of his property, were concerned.

3. In order to see whether the suit is maintainable, we mustassume the facts to be as stated; two more facts, which are not mentioned inthe plaint, but about which there is no dispute, must be added: those are thatthe plaintiff applied under Section 108 of the Code to get the ex-parte decreeset aside, and also applied under Section 311 to get the sale set aside, andthat both applications failed.

4. As we understand the judgment of the Subordinate Judge hewould have decided the preliminary issue referred to above in favour of theplaintiff, but for the one circumstance that the plaintiff had appliedunsuccessfully to get the ex-parte decree set aside under Section 108 of theCode. He says that in applying under that section the plaintiff adopted theproper, but not the only, course open to him; that there was an appeal againstthe order rejecting his application, of which he did not avail himself; thatthe effect of the rejection order was to change the ex-parte decree into acontested decree which the Court had no jurisdiction to set aside, except byway of appeal; and that without setting aside the decree the plaintiff couldnot get back the property sold in execution of it.

5. It is not and could not be now contended that a suit willnot lie to set aside a decree obtained by fraud, nor is it contended that afraudulent decree, which is obtained ex-parte can only be set aside under theprovisions of Section 108 of the Procedure Code. The case of Abdul Mazumdar v.Mohamed Gazi Chowdhry I.L.R. 21 Cal. 605 [LQ/CalHC/1894/17] is an authority that a suit will lieto set aside an ex-parte fraudulent decree, although no endeavour has been madeto get the decree set aside and suit revived under Section 108.

6. [549] The contention is that when a person, against whoman ex-parte decree is passed, does apply under Section 108 to have the decreeset aside and fails, he cannot afterwards, on the same ground as was putforward in the proceeding under Section 108, bring a suit to get the decree setaside, even if fraud is alleged. It is said, as regards the decree, the onlyfraud here alleged is in the non-service of the summons, and that it was foundin the proceedings under Section 108 that the summons was served, or, at allevents, that the plaintiffs had failed to prove that it was not served. We donot understand the learned pleader for the respondent to argue that thequestion of the service of the summons is in this case res judicata. Hisargument, broadly stated, is that when two courses are available, and one isresorted to and fails, recourse cannot be had to the other.

7. It may he conceded that the plaintiff could not bring asuit to set aside the decree on the bare ground that the summons was notserved, or that he was prevented for some good reason from defending the suit,and that would be so whether he had or had not availed himself of the remedyprovided by Section 108. Nor could he maintain a suit to set aside the decreeon the bare ground that he was not liable for the rent decreed, for it wasdecided in the suit that he was liable. His case is not of that description. Itis that the suit in which the decree was obtained was a fraud in its inceptionand throughout, and he seeks to recover property of which he has been deprivedby means of the fraudulent decree, and which has passed into the possession ofpersons who are said to have been parties to the fraud, but not parties to thesuit in which the fraudulent decree was passed. It is not correct to say thatthe only fraud alleged is in the non-service of the summons. This was a part ofthe scheme and the means or one of the means by which the fraud was committed.It may be necessary for the plaintiff, in order to get relief, to attack thedecree, and he does attack it as fraudulent. If the decree was obtained byfraud, and the plaintiff was in consequence deprived of his property, the Courthas full power to set aside the decree and restore his property, unless itsjurisdiction in the case of ex-parte decrees is taken away; but there isnothing in Sections 108, 244, 311, or in any other provisions of law to whichwe have been referred which does take it away. Section 13 of the Code clearlyoffers no bar. The issues which arise are not the same, [550] the parties arenot all the same and the Court which decided the ex-parte suit has nojurisdiction to decide this suit. The mere fact that the plaintiff failed toobtain relief on the narrow ground on which he might have obtained it underSection 108 cannot prevent him from getting relief on the much wider groundsnow put forward.

8. It is said and correctly that the plaintiff might haveappealed against the rejection order under Section 108. All that can be said isthat if he had appealed and succeeded there might have been no necessity forthe present suit. If this is a valid objection it would apply equally to a casein which a plaintiff had made no application under Section 108, but had at oncebrought a suit to set aside the decree. The avoidance of unnecessary litigationmay furnish some ground for arguing that before a person brings a suit he oughtto exhaust the remedy, provided by Section 108, but not that if he fails in hisapplication under Section 108 he is debarred from bringing a suit. The onlycase cited as a direct authority for the respondents contention is that of RajKishen Mookerjee v. Modhoo Soodun Mundle 17 W. R. 413. There the plaintiffbrought a suit to set aside a rent decree obtained under Act X of 1859 on theground that a confession of judgment, on which the decree proceeded, was notput in by him, but was fraudulently placed on the record by other parties. Theplaintiff had applied to the Deputy Collector who passed the decree to revivethe suit under Section 58 of the Act on this particular ground, but the DeputyCollector rejected the application, holding that the confession of judgment wasnot fraudulently obtained. The plaintiff did not appeal as he might have doneagainst the rejection order, and a Division Bench of this Court held that theplaintiff, having a remedy by way of appeal which he did not resort to, wasprecluded from bringing a suit in the Civil Court to set aside the decree. Theground, on which the decision is arrived at, is not clear, and there is noallusion in the judgment to fraud as the foundation of the suit. The case mightbe an authority for holding that no civil suit would lie until the remedyprovided by Section 58 of Act X of 1859, which is, generally speaking,analogous to the provisions of Section 108 as regards civil suits, wasexhausted, in which. [551] event it would apparently conflict with the case ofAbdul Mazumdar v. Mohamed Gazi Chowdhry I.L.R. 21 Cal. 605 [LQ/CalHC/1894/17] but it is noauthority For the proposition that a person failing to obtain relief underSection 108 is debarred from bringing a suit to get the decree set aside on theground of fraud. When there is an appeal against a decision the effect of notappealing is that the decision holds good for what it is worth; so far asconcerns any other modes of relief available the person not appealing is in noworse position than if he had appealed and failed.

9. We must hold that the suit is maintainable, and that thedecision of the Subordinate Judge is wrong. The decree is set aside and thecase remanded under Section 582 of the Civil Procedure Code for trial. Thecosts of this appeal will abide the result.

10. The appellant will be entitled to a refund of the valueof the Court fee stamp.

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Pran Nath Roy vs.Mohesh Chandra Moitra and Ors.(02.04.1897 - CALHC)