Chamier and Piggott, JJ.
1. This was a suit by the appellant praying that a decree for money obtained against him by the respondent in Siliguri might be set aside on the ground that it had been obtained by fraud, and that an injunction might be issued restraining the respondent from executing the same. The appellant alleged that the claim on which the decree rested was totally without foundation, that the respondent had taken steps be prevent the institution of the suit from becoming known to him, and that he knew nothing of it till the 8th of October, 1911, when the respondent caused some of his property to be attached within the jurisdiction of the Munsif of Fatehabad in the Agra district. The appellant alleged that a cause of action accrued to him on the 11th of October, at the place where the attachment was effected. The Munsif decreed the claim; but on appeal the District Judge held that the suit was not maintainable at all. He seems to have thought that the whole of the appellant's case was, that the summons in the suit had not been served on him, and he declined to consider whether there was any foundation for the respondent's suit. The learned Judge has, we think, misunderstood the case. A plaintiff in a case of this kind cannot succeed merely on proving that the summons was not served on him; but if he proves that the former suit had no foundation in fact, but was the outcome of previous enmity, that the summons was not served on him, and that the person who is said to have been present at the service was not there at all, and if he proves other facts also which tend to show that the defendant was anxious to avoid a fair trial of the issue between the parties, it is certainly open to the court to find that the decree was obtained by fraud. The Munsif found that the appellant had proved all this and he held that the decree had been obtained by fraud. It seems to us that in a case of this kind the court can and must go into the whole matter before it can decide the case with any satisfaction to itself or anyone else. That was the view taken in Lakshmi Charan Saha v. Nur Ali (1911) I.L.R. 38 Cale. 936 and it is supported by ample authority. As was said by Lord Robertson in Khagendra Nath Mahata v. Pran Nath Roy (1902) I.L.R. 29 Cale. 395, which was a suit of this kind, 'the appellant's allegation is an attack, not on the sufficiency of the service of notice but on the whole suit as a fraud from beginning to end.' So far as the merits of the case are concerned, we have no hesitation in saying that the proceedings in the lower appellate court were not satisfactory.
2. It is, however, contended, on the authority of the decision in Dan Dayal v. Munna Lal (1914) I.L.R. 36 All. 564 that such a suit as this does not lie at all, except possibly in the court or district in which the decree impugned was passed.
3. That such a suit will lie is beyond doubt, see the remarks of Jenkins, C.J., in Nanda, Kumar Howladar v. Ram Jiban Howladar (1914) I.L.R. 41 Cale. 990 and the decisions of the Privy Council in Radha Raman Shaha v. Pran Nath Roy (1901) I.L.R. 28 Cale. 475 (affirming the decision of the High Court reported in I.L.R. 24 Cale. 546 and Khagendra Nath Mahata v. Pran Nath Roy (1902) I.L.R. 29 Cale. 395. Other recent instances of such suits are Thakur Prosad v. Punkal Singh (1907) 8 C.L.J. 485 and Abdul Huq Chowdhry v. Abdul Hafiz (1908) 14 C.W.N. 695. Incidentally these cases show also that a suit to set aside a decree on the ground of fraud may be brought in a court other than that by which the impugned decree was passed, and we may observe that if it were otherwise no suit could be brought to set aside a decree obtained by fraud in a Court of Small Causes, however gross the fraud might be.
4. But in this Court there seems to be a conflict of opinion on the question whether a suit will lie in these provinces against a resident of another province to have a decree obtained by him in c that province set aside on the ground of fraud, even when property of the plaintiff in these provinces has been attached in execution of the decree impugned. In Banke Behari Lal v. Pokhe Ram (1902) I.L.R. 25 All. 48 it was held that a suit would be in Cawnpore against a resident of Calcutta to have a decree obtained by him in the Calcutta High Court sat aside on the ground of fraud, when property of the plaintiff in Cawnpore had been attached in execution of the decree impugned. But in Kalian Das v. Bakhshi Ram (1910) F.A.F.O. No. 14 of 1910 Knox and Griffin, JJ., held that a suit to set aside, on the ground of fraud, a decree obtained in Kachar by a resident of that place would not lie in Agra, even though the plaintiff had been arrested in Agra in execution of that decree, and in Dan Dayal v. Munna Lal (1914) I.L.R. 36 All. 564 Richards, C.J., and Tudball, J., held that a suit did not lie in Mainpuri against a resident of Calcutta to set aside, on the ground of fraud, a decree obtained by him in Calcutta in execution of which the plaintiff's property in Mainpuri had been attached. In the course of the principal Judgment it is said that 'all that the plaintiff complains of happened in Calcutta and therefore the cause of action arose in Calcutta and no where else.' As at present advised we are not prepared to take this view. In the plaint in that case the plaintiff complained specifically of the attachment of his property in the Mainpuri district, and he prayed for an injunction directing the defendant to release the property from attachment. It seems to us that the attachment of the property was an important part of his cause of action and that it gave the plaintiff the right to sue in Mainpuri. We agree with the, observation made in the case of Banke Behari Lal v. Pokhe Ram (1902) I.L.R. 25 All. 48 by Banerji, J., that 'the execution of the decree and the application for the realization of the amount of it are acts of the defendant which infringe the rights of the plaintiff and afford him his principal cause of action.'
5. In view of the conflict between the decisions in I.L.R. 36 All. 564 and F.A.F.O. No. 14 of 1910 on the one hand and in I.L.R. 25 All. 48, on the other, we have considered the propriety of referring this case to a larger bench; but we have come to the conclusion that such a course is unnecessary. It is part of the plaintiffs case that the defendant fraudulently prevented the institution of the suit from becoming known to him by causing the notice of suit to be served on some other person and an incorrect return to be made to the court. This is part and parcel of the fraud alleged, and if the allegation is found to be true, part of the fraud was committed in the Agra district and there can be no doubt that the cause of action arose in part at least in the Agra district, even if the attachment of the plaintiff's property is not part of the cause of action.
6. We therefore direct that the record be returned to the lower appellate court in order that a finding may be recorded upon the second issue. Further evidence will not be admitted except for good cause shown. On return of the finding ten days will be allowed for objections.