1. In this case the original plaintiff Kasimji Adamji, whose heirs are now the plaintiffs on the record, sued for a declaration that the decree in Suit No. 188 of 1899 in the Court of the fourth Munsif of Howrah and the execution proceedings resulting on that decree should be set aside as fraudulent, and the plaintiff confirmed in possession of the land described in the schedule to the plaint. The sole question arising in this second appeal is whether the present suit is barred by reason of an order under Section 108 of the Civil Procedure Code of 1882 dismissing an application of the present plaintiff to set aside the ex parte decree in Suit No. 188 of 1899. The Court of first instance found that there was no fraud on the part of defendant No. 1 in obtaining the ex parte decree, and that no payment was made to the defendant No, 2, as alleged, for the purpose of getting the suit withdrawn. As to the execution proceedings, that Court was of opinion that no fraud had been established. It also found that the plaintiffs' predecessor-in-title knew of the auction-sale and of the possession being delivered to the defendants before the date when it was alleged that that fraud had become known to him, and it accordingly found that the suit was barred by limitation. On appeal by the plaintiff, the lower Appellate Court found that the fraud relied upon By the plaintiff was satisfactorily established, and that the suit was within time, having been brought within three years of the date when the fraud was discovered. On the third point, which is the point before us, the learned Additional District Judge found that the suit was not barred by reason of the plaintiffs' unsuccessful applications under Sections 108 and 311 of the Civil Procedure Code of 1882. He accordingly allowed the appeal and gave the plaintiff a decree. Against that the defendant No. 1, Khirode Chandra Roy, has appealed to this Court, His interests are the same as those of defendants Nos. 2 and 3.
2. A number of cases have been cited before us. It was held by this Court in the case of Pran Nath Roy v. Mohesh Chandra Moitra 24 C. 546 that the fact of the plaintiff having applied unsuccessfully under Sections 108 and 311 of the Civil Procedure Code of 1882, did not bar the suit then before the Court, which was for setting aside a decree as fraudulent. That case and a cognate case went upon appeal to Her Majesty in Council. The case just referred to is reported as Radha Raman Shaha v. Pran Nath Roy 28 C. 475 : 5 C.W.N. 757. There their Lordships of the Judicial Committee said that they had nothing before them but the bare fact that the plaintiff had endeavoured to get an ex parte decree set aside under Section 108, Civil Procedure Code, under which the Court might try whe ther the summons had been served or whether the plaintiff had been prevented by any sufficient cause from appearing. It was, therefore, impossible for them to say that the matter now alleged as fraudulent came in any way before the Court under the application which was made by virtue of Section 108. In the cognate case of Khagendra Nath Mahata v. Pran Nath Roy 29 C. 395 : 6 C.W.N. 473 : 4 Bom. L,R. 363 : 29 I.A. 99 : 8 Sar. P.C.J. 266 more particulars were laid before their Lordships. Lord Robertson, who delivered the judgment of the Court, paid: 'It is, therefore, necessary to ascertain what are the true grounds and scope of the present suit, in order to see whether the refusal of the applications under the sections specified had already determined the questions now raised.' After setting out the allegations made by the plaintiff he said: 'These allegations are plainly an attack, not on the regularity or sufficiency of the service or the proceedings, but on the whole suit as a fraud from beginning to end.' The Privy Council accordingly held that the limited orders under Sections 108 and 311 would not bind the plaintiff in that suit, where the whole suit itself was attacked as a fraud. In the case of Bal Kishan Lal v. Topeswar Singh 14 Ind. Cas. 845 : 15 C.L.J. 446 : 17 C.W.N. 219 the learned Judge remarked: 'It is now well settled by the decision of the Judicial Committee' (in the cases to which we have just referred) that it is open to a plaintiff, whose application to set aside an ex parte decree under Section 108 and the sale consequent thereon under Sections 244 and 311 of the Code of 1882 have been infructuous, to maintain a suit to set aside the decree on the ground of fraud or for any other valid reason.' If the judgment of the Judicial Committee to which we have just referred be carefully read, it will be seen that that proposition is too broadly stated. In that case, however, it was obvious that the order under Section 108 could not bind the plaintiff. The plaintiff was a minor at the date of the original decree and was not represented by any guardian. Some person, it does not appear who, made an application on behalf of the plaintiff while he was still a minor to have the ex parte decree set aside. That application, however, was dismissed for default, and a later application to restore it was subsequently rejected. Obviously the plaintiff in that case could not be said to be bound by the order, which had been made nominally against him when he was a minor and unrepresented. The case of Golab Koer v. Badshah Bahadur 2 Ind. Cas. 129 : 10 C.L.J. 420 : 13 C.W.N. 1197 to which reference was made, has really no application to the present case as the point there was whether an order made under Section 623 declining to review a decision would bar a subsequent suit. The two cases do not rest upon precisely the same footing. The true test seems to be whether the fraud, in respect of which it is sought to set aside the decree, was a question which was properly in issue in the application under Section 108. It seems unnecessary to consider the, question of the application under Section 311. If the decree can be set aside in this suit, the execution proceedings consequent upon it would likewise be set aside. If the decree stands, then the decision of the application under Section 311 would rest upon its own facts and upon its own merits. It seems, therefore, necessary to see what the fraud actually alleged by the plaintiff was. A perusal of the first 7 paragraphs of the plaint shows that the fraud alleged in this case was not in the rent suit itself but was the deceit practised upon the plaintiff, or rather upon his son, by which the then plaintiffs secured the absence of the present plaintiff Kasimji Adamji on the date that the suit came on for hearing. The allegation was that Salebhoy Kasimji had gone to the Pleader and had paid him Rs. 50 on account of the claim which was just under that sum and the Pleader, who was the brother of defendant No. 1, had promised that he would get the suit withdrawn. Instead of doing that the defendant No. 1, aided by defendant No. 2, his brother the Pleader, and defendant No. 3, applied for and obtained an ex parte decree. There was in this case no doubt that the money was due as claimed by the plaintiff. The Court which tried the application under Section 108 found that the plaintiff had failed to prove the arrangement made by Salebhoy Kasimji with the Pleader for the withdrawal of the suit or that the Rs. 50 was paid. The application under Section 108 was accordingly rejected, as it appeared that the plaintiff Kasimji Adamji was well aware of the suit and of the date when it would come on for hearing. That appears to be the precise fraud, on which it is now sought to set aside that decree. An attempt was made by the learned Pleader for the plaintiff to argue that the fraud in obtaining the decree was not that, but was the false swearing that money was due when, as a fact, it was not due. That, however, is not correct. The fraud alleged was the deceit which was practised upon the plaintiff's son, and which, no doubt, facilitated the passing of the ex parte decree. We have not been referred to any case in this Court precisely in point, but there are two cases decided by the Allahabad High Court in which this distinction has been drawn. In the case of Puran Chand v. Sheodat Rai 29 A. 212 : A.W.N. (1907) 31 : 4 A.L.J. 51 it was pointed out that ihe only real fraud alleged was connected with the non-service of summons. That was a fraud which could be and was decided in the application under Section 108. It was, therefore, held that the plaintiff could not be allowed to again litigate that question in a subsequent suit. The Privy Council cases above referred to were distinguished on that ground. In Niadar Mal v. Raunak Husain 29 A. 608 : A.W.N. (1907) 191 : 4 A.L.J. 668 the same view was taken. There the suit was brought by the plaintiff to set aside a decree on the ground of fraud, the fraud alleged being that the suit had been improperly instituted against the plaintiff as of full age when he was, in fact, a minor. In the application under Section 108, that question was gone into and was found against the plaintiff. It was held that he could not be allowed to re open that question in a subsequent suit. If the remarks of Lord Robertson to which we have above referred, be read carefully, it will be seen that their Lordships clearly anticipated that the refusal of applications under Sections 108 and 311 might determine the question of fraud on which the subsequent suit was based. The point in every case must be whether such questions have been properly raised and determined on such applications. In the case before us, the fraud alleged and sought to be proved, was clearly the prevention of Kasimji Adamji, the original plaintiff, from appearing as defendant in the previous suit. That was found against him in his application under Section 108 after a full trial, and we are of opinion that he cannot be allowed to re-open it in the present suit in which he seeks relief on precisely the same grounds.
3. We accordingly allow the appeal and order that the plaintiff's suit do stand dismissed with costs in all the Courts.