Macpherson and Ameer Ali, JJ.
1. This suit has been dismissed without trial on the preliminary issue as to whether it was maintainable having regard to the provisions of Sections 13 and 244 of the Civil Procedure Code, and the fact that the plaintiff's applications for setting aside the decree and the sale under Sections 108 and 311 of the Code were rejected.
2. The object of the suit is to set aside an ex-parte decree for rent obtained by the first and second defendants against Ram Krishna Sarkar, seventh defendant, and the plaintiff, and to recover from the third, fourth and fifth defendants possession of a property of the plaintiff's which was sold in execution of that decree and purchased by them in the name of the sixth defendant. The plaint sets out that the plaintiff had nothing to do with the jote in respect of which the rent was decreed, or with Ran Krishna Sarkar; that the suit was fraudulently brought at the instigation of the third, fourth and fifth defendants in order to get hold of the plaintiff's property at a low price, and that with a view to carry out the fraud no summons was served, and a false return of (sic) service was caused to be given; that the defendants did not proceed against the tenure for which the arrears were due or against the property of Ram Krishna, but fraudulently caused a very valuable property of the plaintiff's to be sold without service of any of the process required by law and by getting false returns of service submitted, and themselves purchased it for a price much below its value. In short, the plaintiff's case is that the suit culminating in the sale was from first to last a fraud, in which the defendants who purchased and got possession of his property, were concerned.
3. In order to see whether the suit is maintainable, we must assume the facts to be as stated; two more facts, which are not mentioned in the plaint, but about which there is no dispute, must be added: those are that the plaintiff applied under Section 108 of the Code to get the ex-parte decree set aside, and also applied under Section 311 to get the sale set aside, and that both applications failed.
4. As we understand the judgment of the Subordinate Judge he would have decided the preliminary issue referred to above in favour of the plaintiff, but for the one circumstance that the plaintiff had applied unsuccessfully to get the ex-parte decree set aside under Section 108 of the Code. He says that in applying under that section the plaintiff adopted the proper, but not the only, course open to him; that there was an appeal against the order rejecting his application, of which he did not avail himself; that the effect of the rejection order was to change the ex-parte decree into a contested decree which the Court had no jurisdiction to set aside, except by way of appeal; and that without setting aside the decree the plaintiff could not get back the property sold in execution of it.
5. It is not and could not be now contended that a suit will not lie to set aside a decree obtained by fraud, nor is it contended that a fraudulent decree, which is obtained ex-parte can only be set aside under the provisions of Section 108 of the Procedure Code. The case of Abdul Mazumdar v. Mohamed Gazi Chowdhry I.L.R. 21 Cal. 605 is an authority that a suit will lie to set aside an ex-parte fraudulent decree, although no endeavour has been made to get the decree set aside and suit revived under Section 108.
6.  The contention is that when a person, against whom an ex-parte decree is passed, does apply under Section 108 to have the decree set aside and fails, he cannot afterwards, on the same ground as was put forward in the proceeding under Section 108, bring a suit to get the decree set aside, even if fraud is alleged. It is said, as regards the decree, the only fraud here alleged is in the non-service of the summons, and that it was found in the proceedings under Section 108 that the summons was served, or, at all events, that the plaintiffs had failed to prove that it was not served. We do not understand the learned pleader for the respondent to argue that the question of the service of the summons is in this case res judicata. His argument, broadly stated, is that when two courses are available, and one is resorted to and fails, recourse cannot be had to the other.
7. It may he conceded that the plaintiff could not bring a suit to set aside the decree on the bare ground that the summons was not served, or that he was prevented for some good reason from defending the suit, and that would be so whether he had or had not availed himself of the remedy provided by Section 108. Nor could he maintain a suit to set aside the decree on the bare ground that he was not liable for the rent decreed, for it was decided in the suit that he was liable. His case is not of that description. It is that the suit in which the decree was obtained was a fraud in its inception and throughout, and he seeks to recover property of which he has been deprived by means of the fraudulent decree, and which has passed into the possession of persons who are said to have been parties to the fraud, but not parties to the suit in which the fraudulent decree was passed. It is not correct to say that the only fraud alleged is in the non-service of the summons. This was a part of the scheme and the means or one of the means by which the fraud was committed. It may be necessary for the plaintiff, in order to get relief, to attack the decree, and he does attack it as fraudulent. If the decree was obtained by fraud, and the plaintiff was in consequence deprived of his property, the Court has full power to set aside the decree and restore his property, unless its jurisdiction in the case of ex-parte decrees is taken away; but there is nothing in Sections 108, 244, 311, or in any other provisions of law to which we have been referred which does take it away. Section 13 of the Code clearly offers no bar. The issues which arise are not the same,  the parties are not all the same and the Court which decided the ex-parte suit has no jurisdiction to decide this suit. The mere fact that the plaintiff failed to obtain relief on the narrow ground on which he might have obtained it under Section 108 cannot prevent him from getting relief on the much wider grounds now put forward.
8. It is said and correctly that the plaintiff might have appealed against the rejection order under Section 108. All that can be said is that if he had appealed and succeeded there might have been no necessity for the present suit. If this is a valid objection it would apply equally to a case in which a plaintiff had made no application under Section 108, but had at once brought a suit to set aside the decree. The avoidance of unnecessary litigation may furnish some ground for arguing that before a person brings a suit he ought to exhaust the remedy, provided by Section 108, but not that if he fails in his application under Section 108 he is debarred from bringing a suit. The only case cited as a direct authority for the respondent's contention is that of Raj Kishen Mookerjee v. Modhoo Soodun Mundle 17 W. R. 413. There the plaintiff brought a suit to set aside a rent decree obtained under Act X of 1859 on the ground that a confession of judgment, on which the decree proceeded, was not put in by him, but was fraudulently placed on the record by other parties. The plaintiff had applied to the Deputy Collector who passed the decree to revive the suit under Section 58 of the Act on this particular ground, but the Deputy Collector rejected the application, holding that the confession of judgment was not fraudulently obtained. The plaintiff did not appeal as he might have done against the rejection order, and a Division Bench of this Court held that the plaintiff, having a remedy by way of appeal which he did not resort to, was precluded from bringing a suit in the Civil Court to set aside the decree. The ground, on which the decision is arrived at, is not clear, and there is no allusion in the judgment to fraud as the foundation of the suit. The case might be an authority for holding that no civil suit would lie until the remedy provided by Section 58 of Act X of 1859, which is, generally speaking, analogous to the provisions of Section 108 as regards civil suits, was exhausted, in which.  event it would apparently conflict with the case of Abdul Mazumdar v. Mohamed Gazi Chowdhry I.L.R. 21 Cal. 605 but it is no authority For the proposition that a person failing to obtain relief under Section 108 is debarred from bringing a suit to get the decree set aside on the ground of fraud. When there is an appeal against a decision the effect of not appealing is that the decision holds good for what it is worth; so far as concerns any other modes of relief available the person not appealing is in no worse position than if he had appealed and failed.
9. We must hold that the suit is maintainable, and that the decision of the Subordinate Judge is wrong. The decree is set aside and the case remanded under Section 582 of the Civil Procedure Code for trial. The costs of this appeal will abide the result.
10. The appellant will be entitled to a refund of the value of the Court fee stamp.