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Dwarka Prasad Vs. Lachhoman Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All289
AppellantDwarka Prasad
RespondentLachhoman Das
Excerpt:
civil procedure code, section 108 - decree ex parte--suit to set aside as fraudulently obtained a decree ex parte--application to set aside ex parte decree. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees..........on the 27th march 1895. the plaintiff made an application under section 108 of the code of civil procedure to have that decree set aside. that application was dismissed on the ground of limitation. he thereupon brought the present suit for a declaration that the ex parte decree and all the proceedings relating to it were null and void.2. the ground upon which this suit was brought was that the defendant had fraudulently and collusively fabricated a bond purporting to be a bond executed by the plaintiff; that in furtherance of that fraud he had obtained an ex parte decree without the plaintiff's knowledge, and had secretly and without the knowledge of the plaintiff caused attachment orders to be issued in execution of that decree. the court of first instance dismissed the suit,.....
Judgment:

Banerji and Aikman, JJ.

1. The defendant-appellant obtained an ex parte decree against the plaintiff-respondent on the 27th March 1895. The plaintiff made an application under Section 108 of the Code of Civil Procedure to have that decree set aside. That application was dismissed on the ground of limitation. He thereupon brought the present suit for a declaration that the ex parte decree and all the proceedings relating to it were null and void.

2. The ground upon which this suit was brought was that the defendant had fraudulently and collusively fabricated a bond purporting to be a bond executed by the plaintiff; that in furtherance of that fraud he had obtained an ex parte decree without the plaintiff's knowledge, and had secretly and without the knowledge of the plaintiff caused attachment orders to be issued in execution of that decree. The Court of First Instance dismissed the suit, being of opinion that it was not maintainable.

3. The Lower Appellate Court has set aside the decree of the Court of First Instance and remanded the case under Section 562 of the Code of Civil Procedure. From that order of remand this appeal has been brought. The view of the Court below is supported by the ruling in Pran Nath Roy v. Mohesh Chandra Moitra (1897) I.L.R. 24 Cal. 546. The application under Section 108 of the Code of Civil Procedure was never heard on the merits, and the ground upon which the present suit has been brought was never considered by the Court.

4. We are of opinion that no sufficient ground has been made out for interfering with the lower Court's order. The appeal is dismissed with costs.


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