Varadarajan Iyengar, J.
1. This Second Appeal is by the plaintiff whose suit for redemption after ignoring a prior decree and sale in execution following, of the equity, on ground of fraud has been dismissed concurrently by the courts below.
2. The plaint schedule garden land 2 acres 67 cents in extent with a building thereon and situate in Mukundapuram Taluk belonged to the plaintiff. He first executed on 2-11-1105 Ext. C chitty hypothecation bond in favour of Edathuruthi Church securing the property for the payment of future subscriptions in a chitty. Later but in the same year he executed a simple mortgage over it in favour of the 3rd defendant for a sum of Rs. 400/-. He finally, on 13-6-1106 executed Ext. B usufructuary mortgage of the property in favour of the defendants 1 and 2, for a sum of Rs. 140/ pledging also by way of further security certain paid-up subscription in another chitty. Under the provisions of Ext. B the yearly income from the property was estimated at Rs. 120 and this amount the defendants 1 and 2 undertook to utilise; as follows: to pav therefrom Rs. 90 in three instalments of Rs. 30 each to the Edatburuthi Church towards the plaintiffs chitty subscriptions under Ext C, appropriate Rs. 20 towards maintenance charges and adjust Rs. 10 in partial payment of thc interest of Rs. 22-6-0 due on their mortgage amount of Rs. 140.
The balance of Rs. 12-6-0 was to he made up by the plaintiff at the end of every year. It would appear that the plaintiff did not pay this amount of Rs. 12-6-0 and he also defaulted to pay the tax of Rs. 2-6-4. On 16-10-1111 defendants 1 and 2 filed suit O. S. 826 of 1111, copy of the plaint is Ext. A, against the plaintiff for enforcing Ext. B mortgage. Ext. A mentioned that since 1109 the schedule property yielded only Rs. 30 on the whole, Rs. 20 of which went to the maintenance charges leaving only Rs. 10 for adjustment towards interest on the mortgage amount, the plaintiff had not also paid Rs. 12-6-0 undertaken by him, and had further defaulted the payment of yearly tax due on the property. The claim was therefore laid in Ext. A for realisation of a total amount of Rs. 287-3-0. The suit was decreed ex parte against the plaintiff on 8-12-1111 and commencing execution on foot of the decree on 25-2-1112, defendants 1 and 2 purchased the schedule property (subject to the prior encumbrances) themselves in court sale on 1-10-1112 in full satisfaction of their decree. They thereafter, obtained symbolical delivery on 21-1-1113 under Ex. VI dated 27-5-1113.
Soon later under Ext. E dated 27-5-1113 defts. 1 & 2 sold the property to the 3rd defendant for a sum of Rs. 1,500 providing for payment to the Edathu-ruthi Church of Rs. 779-12-0 and for adjustment in favour of 3rd defendant of Rs. 700 under his own mortgage so as to leave a sum of Rs. 20-4-0 only to be paid to them. The 3rd defendant it would appear, did not pay off the Church as per the recital in Ext. E. However he entered into compromise with them in suit O. S. 674 of 1116 later on filed by them whereby they agreed to accept Rs. 650 in satisfaction. Reciting this amount, the 3rd defendant subsequently sold the property under Ext. VII dated 18-11-1116 in favour of the 4th defendant for a sum of Rs. 1000.
3. While so, plaintiff filed Ext. I petition supported by affdavit Ext. II on 20-9-1123, under Or. 9, Rule 13 to set aside ihe ex partc decree against him in O. S. 826 of 1111. The plaintiff explained the delay in the filing of Ext. I on account of the fact that he left for Bombay in 1107 and had come back once only in 1108 during all the interval and only after 10-9-1123 when he returned, he knew of the decree. He averred further that the defendants 1 and 2 had fraudulently suppressed the processes both in the trial and execution proceedings and so had obtained ex parte decree for more amount than due and also the sale in execution in their favour. The defendants 1 and 2 and also the 4th defendant who were made respondents to the petition objected. In the result the plaintiff's petition was rejected by Ext. III order dated 8-7-1124 because the court was 'not satisfied that the plaintiff has discharged the burden of proving that summons was not duly served and that he had no knowledge of the suit or the decree within the period of limitation provided by the law'.
This suit was thereafter filed on 24-8-1124 for redemption of Ext. B mortgage after setting aside the decree and execution proceedings in O. S. 826 of 1111 on account of the fraud of 1 and 2 defendants and ignoring the subsequent alienations in favour of 3 and o defendants as merely collusive. The plaint alleged that the defendants 1 and 2 had knowledge of the fact that the plaintiff was not available at his original address when they filed O. S. 826 of 1111 and their getting the plaintiff declared ex parte for purpose of that suit was frau-dulent. The plaint further averred that the defen-dants 1 and 2 had by their failure to account for the full income of the properly as undertaken by them paid themselves off so far as Ext. B amount was concerned. The suit and decree in O. S. 826 were therefore conceived in fraud and could not be sustained; the execution proceedings based thereon had also to go. The suit was contested by the 4th defendant on the main basis that the suit was not maintainable particularly after the disposal against the plaintiff of his restoration application containing the same averments as to fraud and falsity as here. On the motion of the 4th defendant unsuccessfully opposed by the plaintiff, to take up issues 1, 4 and 5 as preliminary issues, the trial court heard the case without posting it for evidence and in the end dismissed the suit. The lower appellate court has now confirmed this decree and hence this Second Appeal,
4. Now the issues 1, 4 and 5 are:
'1. Is the suit not maintainable?
4. Is the suit barred by res judicata by order of M. P. 1716 of 1123 in O. S. 826 of 1111 and
5. Is the claim to set aside the sale barred by limitation?'
According to the learned Munsiff the finding in Ext. III order that the plaintiff failed to prove that the summons was not duly served upon him amounted to a further finding that the plaintiff had not proved, that he was at Bombay when the summons were taken out and that the defendants 1 and 2 got the summons served fraudulently in the local address. These findings, having become final were res judicata against the plaintiff so as to prevent him from reagitating the same in this suit. That is to say, the fraud to be enquired into in the suit had been already decided or must be deemed to be decided. The suit was therefore barred by res judicata by the order in Ext. III. The only other fraud (apart from that relating to service of summons) alleged by the plaintiff was that which vitiated the execution sale, but this according to the learned Munsiff was obviously a matter in execution and could not be tlie subject of a suit.
If so, there was left only an application to set aside the sale on the ground of fraud and as this had to be filed within 30 days of the date of sale the claim to set aside the sale was, the learned Munsiff concluded, clearly barred by limitation. The learned Judge agreed with the trial court that Ext. III order operated as res judicata as far as the ground of fraud in the service of summons was concerned. But this according to the learned Judge left as further ground only the fraudulent putting forward of a false claim against the plaintiff by the defendants 1 and 2 in O. S. 826 and obtaining a decree therein on the basis of such false claim. But this fraud was not extraneous to or collateral to the things adjudicated upon in the ex parte decree and so, in the opinion of the learned Judges could not avail the plaintiff. This left only the question of a matter in execution for which no separate suit lay, as according to the Judge, the learned Munsiff had already correctly held.
5. Now there ean be no doubt that a suit will not be entertained where the only fraud alleged is bare non-service of summons. Similarly the mere fact that the ex parte decree has been procured by false or perjured evidence is no ground for setting it aside. But where the non-service oi summons in the previous suit has not by itself been found sufficient to prove fraud it is permissible to go into the merits of the previous suit to see if there was a motive for wilful or fraudulent suppression of the notice or summons in order to obtain a decree based on false claim. As Kulwant Sahay, T., observed in Ramchandra v. Firm Parbhu Lal Ram Ratan, AIR 1927 Pat 183:
'A decree passed by a competent court cannot be set aside by a suit simply on the ground that the decree passed was based on a false claim nor can a decree be set aside simply on the ground that there was no service of summons or notices. But once it is established that there was no service of summons or notices it is, in my opinion, open to the plaintiff in a subsequent suit to show that the claim in the previous suit was a false claim and the court can go into the question with the object of deter-mining as to whether there was a wilful and fraudulent suppression of the notices and summons in order to obtain a decree based on a false claim by preventing the defendant from placing his case before the court. In other words after non-service of the summons is proved it is open to the court to go into the question as regards the merits of the previous suit with the object of finding as to whether there was any motive for the fraud and as to whether fraud was actually perpetrated, and as to whether, if opportunity had been given to the defendant he could have produced evidence which might have led the court to come to a different decision.'
But the falsity of the claim as observed in Haji Adreman Dharar v. Haji Suleman Chamadia, AIR 1955 Sau 28 raises merely a presumption against the plaintiff in the first, suit and if the circumstances of the case show that the plaintiff's claim was bona fide and his conduct before and during the suit negatives any inference of fraud or an attempt to commit fraud, the decree cannot be set aside even if non-service of summons is proved and it is shown that if the defendant bad defended the suit the decree against him might not possibly have been passed. So in the case of Radha Raman Shaha v. Prannath Roy, ILR 28 Cal 475 the Privy Council held that where the plaintiff had applied to set aside an ex parte decree under Order 9, Rule 13, C.P.C. and failed, a suit to set aside the decree on the ground of fraud would not be barred in the absence of proof that the question of fraud in obtaining the decree was raised and decided in the previous proceedings. Similarly in Khagendra Nath v. Pran Nath ILR 29 Cal 395 (PC), it was held:
'That a suit to set-aside an ex parte decree and a sale in execution of such decree as illegal, fraudulent and collusive was maintainable notwithstanding the fact that the plaintiff had been unsuccessful in applications under Sections 108 (O. 9, Rule 13) and 311 (O. 21, Rule 90) Civil P. C. to set aside the ex parte decree and sale in execution, when the allegations made in the plaint were clearly an attack not on the regularity or on the sufficiency of the service of summons or the proceedings but on the whole suit in which the ex parte decree was obtained as being a fraud from beginning to end.'
Finally in the latest case Girish Chandra v. Kalachand, (S) AIR 1957 Cal 242 an ex parte decree was passed against A in a mortgage suit. His application to get it set aside under Order 9, Rule .13 was rejected on the finding that the summons was duly served on him in tho suit. Thereupon he brough a suit to set aside the ex parte decree on the ground of non-service of summons and the question arose whether the suit was barred by res judicata by the Ending on the application under Order 9 Rule 13. Held, that the fraud alleged in the suit to set aside the ex parte decree included, inter alia, falsily of, the claim which really attacked the suit itself and challenged it as false suit. Although allegations also of perjured evidence and fraudulent suppression of summons were made in the suit those were really treated as part of the main allegation of fraud that the claim, that is, the suit itself was a false one, for which there was absolutely no foundation and/or in winch a fraudulent ex parte decree was obtained. The finding in the Order 9 Rule 13 proceeding that summons was served did not, in the context in which it appeared mean anything more. The question of fraudulent suppression of summons Or the falsity of the claim which might well have provided a motive tor such suppression was not at all considered in that proceeding and therefore in those circumstances no question of res judicata arose in the suit. See also O. Vydian v. K. Vydian, AIR 1951 Trav-Co 165. In Mulla's Civil Procedure Code, Vol. I, 12th Edn. at p. 653 the principle is summarised as follows:
'The suit is maintainable even though the defendant was not successsful in his application made under this rule to set aside the ex parte decree and though he did not appeal from the order rejecting his application. But if the very fraud that is set up by the defendant in his suit was set up in his application and the court after going into question of iraud rejected the application the suit would be barred as res judicata unless the fraud alleged was of such a nature that it would not properly come within the scope of enquiry under this rule.'
Learned counsel for the respondent relied upon Mt. Laganmami Kuer v. Ram Gobind Singh, AIR 1942 Pat 357 for the proposition
'Once it is held that the decision in the proceeding under Order 9, Rule 13 is res judicata the question as to the falsity of the claim does not arise. If the plaintiff notwithstanding the service of summons upon him in the former suit did not choose to appear and contest the suit, ho cannot subsequently be allowed to urge that the ex parte decree should be set aside on the ground that the claim was false.'
But it would appear that the only charge of fraud in that case consisted in the allegation that the summons had been fraudulently suppressed. That allegation was fully investigated and negatived in proceedings under Order 9, Rule 13. So it was held that the alleged fraudulent suppression of service cannot be re-opened between the same parties in a subsequent suit. We may in this connection contrast the later case in that same court, Bisesar Pathak v. Phaguni Mahton, AIR 1948 Pat 33 where Das, J. observed:
'Even if the court before which the application under Order 9, Rule 13 C. P. C. had been filed bad decided the application on merits, it could only have decided the question which arose under Order 9 Rule 13 C. P. C., namely, that the summons was not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. The court could not decide the more radical question, namely, that there was fraud, independent of, and not merely confined to the service of summons in the suit. Therefore a decision given by the court on the application under Order 9 Rule 13 C. P. C. could not have operated as res judicata on the more radical question of fraud, because such a question would have been beyond the scope and purview of an application under Order 9, Rule 13 C. P. C.'
On this test, it is enough to say that the suit here cannot be said to be not maintainable on the allegations contained in the plaint and there is no bar of res judicata for the suit by reason merely of Ext. III order. The mistake into which the learned Judge fell was to consider the effectiveness in law of the allegations as to service of summons and as to the falsity of the claim separately and not to appreciate them conjointly. The Munsiff on the other hand did not consider the question of false claim altogether. I do not wish to say more lest it may be embarrassing to one or the other of the parties as the trial. Nor can there be any scope for the contention of limitation for the claim to set aside the sale in execution of the decree. For where not one alone the execution proceedings but the decree itself is attacked on the ground of fraud a suit to set aside the execution sale would be governed by Article 95 of the Limitation Act. See Moti Lal v. Russick Chandra, ILR 26 Cal 326n.
6. I therefore set aside the decrees of thecourts below and remand the case for fresh disposal in the light of the observations made above.The appellant will get his costs here except to theextent of the institution fees which will be refunded to him and in the lower appellate court fromthe contesting respondent. As the suit appears tobe rather old, it will he given as expeditious atrial us possible. Send down the records at once.