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Ram Sarup Kalwar and anr. Vs. Mahabir Kalwar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All685
AppellantRam Sarup Kalwar and anr.
RespondentMahabir Kalwar
Excerpt:
- - 3. the plaintiff complained that the decree referred to above in suit no. that the plaintiff, on hearing about the institution of the suit, complained to the defendants and the matter was referred to a panchayat. 549 of 1924. 4. the defendants contended that the decree complained about was properly obtained and that no fraud was practised upon the plaintiff......1924 was no award at all. he further held that the plaintiff was prevented from defending the suit (suit no. 338 of 1923) in the court of small causes at rai bareli by reason of certain fraudulent assurances given by the defendants with the support and assistance of prag ram teli. the munsif decreed the plaintiff's suit. on appeal by the defendants the learned additional subordinate judge has affirmed the decree. he found that the decree dated 11th january 1924 was vitiated by fraud. the defendants in their appeal to this court have argued two points. it is contended that the court below has misdirected itself in arriving at the finding that the decree dated 11th january 1924 in suit no. 338 of 1923 has been obtained by fraud. it has been said that one of the circumstances which.....
Judgment:

Sen, J.

1. This is an appeal by two defendants, Ram Sarup Kolwar and Sukhdeo Kalwar in a suit for a declaration that the decree obtained by Sukhdeo against the plaintiff Mahabir in suit No. 338 of 1923 from the Court of Small. Causes, Rai Bareili, was fraudulently obtained, for the cancellation of the said decree and for an injunction restraining Sukhdeo from executing the decree against the plaintiff.

2. The defendants Ram Sarup and Sukhdeo, who are brothers owned two shops, one at Mungra Badshahpur in the District of Jaunpur, and the other at Fursatganj in the District of Rai Bareli. The plaintiff alleges that in the year 1920 he was appointed a Munib of the shop at Fursatganj at a certain salary; that in February 1921, the plaintiff became a partner of the firm at Mungra Badshahpur; that the plaintiff owed one Raghunandan Tewari a sum of Rs. 390 under a bond, dated 16th March 1915; that Raghunandan in his turn was indebted to the defendants to the extent of about Sections 700, that Sukhdeo, having sued Raghunandan Tewari in the Rai Bareli Court for recovery of Rs. 700 or thereabout, the claim was compromised on 14th April 1923; that one of the terms of the compromise was that Rs. 390 which was due to Mahabir, be deducted from the claim because Mahabir had executed a bond in favour of Sukhdeo on that very date, that is, the 14th April 1923; but the partnership of Mungra Badshahpur came to an end some time about November 1923, but the account was neither adjusted nor settled and that on 21st November 1923 Sukhdeo instituted a suit against Mahabir for recovery of Rs. 405-6-0 on the mortgage bond dated 14th April 1923 in the Court of the Judge of Small Causes at Rai Bareli, which was numbered as 338 of 1923 and that an ex-parte decree was passed on 11th January 1924. This decree was put into execution and two houses of Mahabir situate in the District of Jaunpur were attached.

3. The plaintiff complained that the decree referred to above in suit No. 338 of 1923 was a fraudulent one, that the plaintiff was prevented from defending the suit in the Court of the Judge of Small Causes at Rai Bareli, that the understanding between the parties was that the amount of the bond dated 14th April 1923, was to be realized from the plaintiff's share of the profits in the Mungra Badshahpur firm and from his salary as a Munib; that the bond was put into suit in breach of this understanding; that the plaintiff, on hearing about the institution of the suit, complained to the defendants and the matter was referred to a panchayat. The recommendation of the panchayat was that the defendants should withdraw the suit and pay the plaintiff's costs. The defendants did not act up to the recommendation of the panchayat and the matter was referred to the arbitration of one Prag Ram Teli on 5th January 1924. The latter made an award on 13th October 1924 under which Rs. 560-4-0 were found due to the defendants and certain other persons. An application was made for filing this award on 1st November 1924 and was numbered as original suit No. 549 of 1924.

4. The defendants contended that the decree complained about was properly obtained and that no fraud was practised upon the plaintiff.

5. The Munsif held that the award of Prag Ram Teli was vitiated by fraud, that Prag Ram Teli was in collusion with the defendants, and the award dated 1st November 1924 was no award at all. He further held that the plaintiff was prevented from defending the suit (Suit No. 338 of 1923) in the Court of Small Causes at Rai Bareli by reason of certain fraudulent assurances given by the defendants with the support and assistance of Prag Ram Teli. The Munsif decreed the plaintiff's suit. On appeal by the defendants the learned Additional Subordinate Judge has affirmed the decree. He found that the decree dated 11th January 1924 was vitiated by fraud. The defendants in their appeal to this Court have argued two points. It is contended that the Court below has misdirected itself in arriving at the finding that the decree dated 11th January 1924 in suit No. 338 of 1923 has been obtained by fraud. It has been said that one of the circumstances which influenced the decision of the Court below was that the money on the bond dated 14th April 1923 was not due on the date when the suit was instituted and that the claim itself was premature, The learned Counsel for the appellants contends that the bond itself was an instalment bond and immovable property of the value of more than Rs. 100 having been hypothecated to secure the debt, the bond could not operate as a valid mortgage for a sum of Rs. 390 and that because the document was inoperative as a mortgage bond, the plaintiff in that suit was entitled to fall back upon the original consideration and instituted a suit for recovery of the amount.

6. I hold that the Courts below were justified in taking into consideration the terms of the document in determining the question as to whether the decree was obtained by fraud. The Courts below upon a consideration of the entire evidence, oral and documentary, and the surrounding circumstances arrived at a definite finding that the decree in suit No. 338 of 1923 dated 11th January 1924 was vitiated by fraud and that Ram Sarup and Sukhdeo in that suit had so maneuvered things as to prevent Mahabir from entering upon or conducting his defence. This is a finding of fact binding upon this Court and no facts have been shown as would vitiate the finding upon any legal ground.

7. The next point urged is ground No. 2 of the memorandum of appeal, which runs thus:

Because in any case, the Courts below ought only to have restored the suit giving an opportunity to the defendant to make his defence.

8. The plea of the appellants ought to prevail. The Courts below do not appear to have realized the effect of the decree, dated 11th January 1924 being vacated upon the ground of fraud. The decree itself is wiped off but the suit No. 338 of 1923 is still to be disposed of. The effect of the cancellation of the decree is that the parties are relegated to the position they occupied before the decree was passed. Both the plaintiffs and the defendants in that action are remitted to their original rights. The result of the avoidance of the decree therefore is that the defendants-appellants have the right to continue the suit No. 338 of 1923 against Mahabir Kalwar in the Court of Small Causes at Rai Bareli and the plaintiff has the right of contesting the suit if so advised. This declaration, however, does not affect the merits of the suit which has given rise to the present appeal. The result is that this appeal fails and is dismissed with costs.


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