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4. Mr. N. C. Shah, learned advocate of the appellant, has raised two contentions -- (1) that a suit to set aside the decree on the ground of fraud in the service of summons in not maintainable; and (2) that on the facts of the case, the fraud alleged in the plaint is not proved. Mr. Shah has urged that a suit is not competent to set aside an ex parte decree on the ground that the service of the summons in the suit was improperly effected as a result of which an ex parte order was passed by the court which passed the decree, and the only remedy available to a judgment-debtor in such a case would be to make an application to set aside the ex parte decree under Order 9, Rule 13 of the Civil Procedure Code. It has been urged that Order 9 is a self-contained provision to cover all sorts of cases where an ex parte decree could be set aside, and it would, therefore, not he permissible to a litigant to reagitate a cause that has already been decided once by a competent court save by resorting to that provision. It is said that Article 164 of the Indian Limitation Act prescribes a period of limitation of 30 days from the date of the defendant's knowledge of the decree in cases where summons is not duly served, and, therefore, there would be no injustice caused to a defendant against whom an ex parte decree is passed, if he is not given a right to file a separate suit to set aside an ex parte decree.
5. Reference has been made by Mr. Shall to some decided cases in this connection, where the question of maintainability of a suit to set aside a decree has been considered. Mr. Shah has relied on the case of Puran Chand v. Sheodat Rai, ILR 29 All 212. On a perusal of the facts in that case, it will be found that the only real fraud alleged was connected with the non-service of summons, and that question was fully gone into and decided by the court in an application under Section 108 of the Code of Civil Procedure. That case therefore will have no application to the facts of the present case where no such application has been made.
6. The next case on which reliance has been placed by Mr. Shah is Narsingh Das v. Mt. Bibi Rafikhan, ILR 37 Cal 197, wherein it has been held that
'A fresh suit would not lie to set aside a decree on the mere ground of non-service of summons, though it would be maintainable on the ground of fraud'.
This case is clearly distinguishable as it will appear from the following observations at page 201:
'The mortgage decree, which is inter paries, is prima facie binding on the plaintiff until it is legally set aside, and although she says she came to know of the defendant's possession in 1898, and evidently the title which they asserted, she has not taken any steps for that purpose. The principle of res judicata is a principle of rest and convenience, and not of absolute justice. It may be that the plaintiff was really unaware of the suit, and the decree and the sale proceedings were all behind her back; but she was bound, as soon as she came to know the facts, to come to court in the only manner in which, the sanctity of a solemn act of court can be impeached. She ought to have applied, if possible, to have the decree set aside under Section 108, Civil Procedure Code, if she complained only of non-service of summons, or to have applied for a review on the ground of fraud, or brought a regular suit on the ground of fraud if she alleged any. She has done nothing of the kind, and pleads ignorance of the suit when challenged by a title sanctified by a Court sale in execution of a solemn decree of the Court. There is no doubt that fraud will re-open and nullify the most solemn acts of Courts of Justice, and it has been held in a series of cases that a suit will lie for setting aside a decree on the ground of fraud : see Abdul. Mazumdar v. Mahomed Gazi, ILR 21 Cal 605, Mahomed Golab. v. Mahomed Sulliman, ILR 21 Cal 612, Pran Nath Roy v. Mohesh Chandra Moitra, ILR 24 Cal 546, Nistarini Dassi v. Nundo. Lall Bose, ILR 26 Cal 891, Radha Raman Shaha v. Pran Nath Roy, ILR 28 Cal 475, Khagendra Nath v: Pran Nath Roy, ILR. 29 Cal 395 (P. C.) . But fraud is neither pleaded nor proved in. this case, and the only finding that assails the title of the defendants is non-service of summons. There is no direct authority in this Court that a decree can be impeached on this ground except under Section 108 of the Civil Procedure Code. The question, however, was raised in several cases, and the decisions seem to show more than indirectly that non-service of summons alone is not a ground for setting aside a decree by suit...'
7. Mr. Shah has then relied on the case of Ibrahim Harun Jaffer v. Jusu Hussain Jaffer, 22 Bom LR 798 : (AIR 1920 Bom 351), wherein it has been held that
'a party against whom a decree is passed ex parte can seek to set it aside by an application under Order IX, Rule 13, of the Civil Procedure Code; or he can appeal from the decree; but it is not competent to hint to start a fresh proceeding to set aside the decree'.
As, we find from the judgment, at page 799 (of Bom LR) : (at p. 352 of AIR), the ground on which the plaintiff asked for the relief was that the decree in terms of the award was passed ex parte without notice of the date of hearing being served on the plaintiff, and in this connection, it was observed that -
'It may be that there were vague allegations of misconduct and fraud in the plaint, but therewere no particulars given of such fraud as is required by the rules of pleading, and it is quite-clear that the case went to trial only on the question whether the plaintiff was entitled to have the award decree set aside on the ground that it was made. ex. .partc. The learned Judge in the lower Court held that the plaintiff was entitled to have the ex parte decree in suit 377 of 1912 set aside and awarded the claim with costs. Now it is perfectly well recognised that it is only on certain grounds that the Court will entertain a suit to get aside a decree, and that is if it can be proved that the decree has beep obtained by fraud. Otherwise there would be no end to litigation. An unsuccessful party cannot file another suit to set aside a decree because he is not satisfied with it, on any other ground except fraud. Order IX Rule 13 of the Code prescribes the course which should be followed by a party against whom a decree has been passed ex parte. He has to apply to the Court which passed the decree for an order to set it aside. If he succeeds in satisfying the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court is entitled to make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, or the party against whom an ex parte decree is passed may appeal, but he certainly cannot start a fresh proceeding to set aside the decree.'
The decision in 22 Bom LR 7.98 : (AIR 1920 Bom 351), follows the decision in ILR 37 Cal 197. In the case before the High Court of Bombay, it will be seen that there were no particulars given of the fraud as was required by the rules of plead-ing and the entire case went on trial only on the question whether the plaintiff was entitled to have an award decree set aside on the ground that it was made ex parte. It was in the context of these facts that the observations referred to above were made in the judgment.
8. In reply to the arguments of Mr. N. C. Shah, Mr. S. B. Vakil learned advocate of the respondent has argued that a suit is always maintainable to set aside a decree on the ground of fraud, and has relied on the decision in ILR 28 Cal 475 (P. C.). In that case it was urged that the original defendant had already applied to set aside the decree under Section 108 of the Code of Civil Procedure which application was rejected, and that therefore, no fresh suit will lie to set aside the decree. The subordinate judge summarily dismissed the suit as not maintainable in consequence of the proceedings taken under Section 108 of the Code. On appeal, the High Court reversed the order and held that such a suit will lie. The fact of the plaintiff having made the applications, and these applications having been rejected was not disputed. But there was nothing on the record to show what was brought before the Court on those occasions, nor what was the ground of rejection. On appeal to the Privy Council, the decision of the High Court was confirmed. The judgment of the Privy Council was delivered by Lord Hobhouse, wherein it was observed --
'Their Lordships are all agreed that the preliminary objection cannot be sustained, and that the High Court were right in overruling it. We have nothing before us, but the bare fact that the plaintiff endeavoured to get an ex parte decree set aside under Section 108 of the Code of Civil Procedure, under which the Court may try whether the summons was served or whether the plaintiff was prevented by any sufficient cause from appearing. We are not told what went on before the Court upon that occasion, and it is impossible to say that the matter now alleged as fraudulent matter came in any way before the Court under the application which was made by virtue of Section 108'.
9. Reference was also made to the following observations in ILR 21 Cal 605 at p. 608:
'It was argued for the respondents that, as the non-service of summons is the only indication of fraud alleged in the plaint, the proper course for the plaintiffs was to proceed under Section 108 of the Code of Civil Procedure for setting aside the ex parte decree. But what is alleged in the plaint is not mere non-service but fraudulent suppression of the summons and the causing of a false return of service to be filed. And without in any way dealing with the facts of the case, which we cannot do in second appeal, or saying anything which would hamper the Court of Appeal below in the decision of the case on its merits, we may here observe that there is a material difference between mere non-service or absence of due service of summons, which is the result of mistake or inadvertence and the suppression of service, and the causing of a false return of service which must be the result of deliberate design.'
10. Mr. Vakil next relied on the following observations in the case of Dwarka Prasad v. Lachhman Das ILR 21 All 289.
'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. '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, ILR 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.'
11. Reference was also made to Nirsan Singh v. Kishuni Singh, AIR 1931 Pat 204 (2) (FB), where-in the question as to whether when an ex garte decree is set aside in a subsequent suit, the original suit in which that decree was obtained is revivedor not has been discussed, and the indication in the judgment appears to be that a subsequent suit for setting aside an ex parte decree obtained by fraudulent means such as suppression of summons would be maintainable. Of course, it is true that in that case, the principal question involved was about the revival of the original suit in case of the ex parte decree set aside in a subsequent suit. But while discussing that question, it has been observed that:
'The defendant agamnst whom the ex parte decree has been obtained, has a right to have it set aside by instituting a regular suit on the ground that it was obtained by fraud; vide ILR 24 Cal 546. The matter was taken twice to the Privy Council and the view taken by the Calcutta High Court was upheld : ILR 28 Cal 475 and ILR 29 Cal 395 (P. C.). In such a suit the defendant as plaintiff can succeed only upon proof that he was prevented from appearing and placing his case before the Court in the original suit by means of fraud practised upon him, such as, the suppression of summons by fraudulent means, etc, and as a motive for the fraudulent conduct of the plaintiff he may attack the original suit in which the ex parte decree was obtained as being fraud from beginning to end and that the plaintiff's claim itself was false and there was absolutely no foundation for the suit.'
12. In ILR 29 Cal 395 (P. C.), it was observed by the Privy Council that as the allegations made in the plaint were clearly an attack not on the regularity or 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. It was held that the suit was maintainable notwithstanding that the plaintiff had been unsuccessful in applications under Section 108 and Section 311 of the Civil Procedure Code to set aside the ex parte decree and the sale in execution, and had not appealed from the orders rejecting such applications, the questions in the suit as a whole being such as could not have been determined on applications under those sections. It was observed at page 399 that:
'It seems to Their Lordships, now that the matter is fully before them, as it did on less complete information to the Board which had previous cognisance of the question, as raised in an appeal of ILR 28 Cal 475 (P. C.), on identically the same ground, that this is a case generically different from any which was or indeed could be determined under Sections 108 and 311 of the Civil Procedure Code. Those sections limit the attention of the tribunal to specific matters, and, instead of subjecting to enquiry the radical question now involved, they assume the existence of a real suit. But here the suit itself is attained as a fraud; and the fraudulent and violent incidents of its progress as for instance at the stage of service and in the abduction of the respondent, while they mav individually have founded an application under Sections 108 and 311, are here treated as parts and indicia of a whole.'
13. In my judgment, the contentions of Mr. Shah cannot be accepted. Fraud vitiates the most solemn transaction, and if a plaintiff suppresses avital fact on the basis of which the court is induced to pass ex parte order and obtains the decree in his favour, it would amount to fraud in relation to the proceedings of the court. A suit to set aside such a decree is maintainable notwithstanding the fact that it has not been preceded by an application under Order 9 Rule 13 C. P. C. Where, however, the only fraud alleged is a bare non-service of summons, such a suit would not bo maintainable. But it is quite a different matter where the whole suit is attacked on the ground of fraud, and the incident of improper or defective service is relied on as one indicia of fraud. A iraudulent suppression in tile matter of service of summons can afford a sufficient ground for setting aside an ex parte decree and the jurisdiction of the court to set aside a decree on the ground of fraud cannot in such cases be denied, though it is to he exercised with care and reserve. Of course, the fraud must be actually positive amounting to an intentional contrivance to keep the parties and the court in ignorance of the real facts and obtaining a decree by such a contrivance. The fraud must also be extrinsic to the proceedings of the court, that is, it must be in the conduct of the suit by keeping die defendant out of court by a deliberate employment of the machinery of the court in such a way that the defendant is prevented from placing his case before the court. In suits to set aside an ex parte decree on the ground of fraud, it is the plaintiff's mental approach to the suit which is material, and the mere proof of non-service of summons or falsity of the claim by themselves will not be sufficient to sustain an action unless they form part of the scheme of effecting a general design to commit fraud. A decree can be reopened by a new action when the court passing it had been misled by fraud, hut it cannot be re-opened when the court is simply mistaken. There is thus a substantial difference between a mere mistake of the court and the court being misled and in the case of ex parte decrees where the defendant had never appeared in court the attempt to mislead the court by suppressing the summons, would itself be the contrivance and really an effective one for keeping tho defendant in ignorance of the suit and depriving him of his legitimate right of defending the suit. On this view of the matter, the first contention of Mr. Shah cannot he accepted.
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