Trevelyan and Banerjee, JJ.
1. This was a suit brought by the plaintiffs-appellants for declaration of their title to, and for confirmation of their possession of, certain immoveable property after setting aside an ex parte decree and a sale in execution thereof, on the ground of the decree and the execution sale being fraudulent. The defence, which we need not here consider in detail, consisted in a denial of the plaintiffs' allegations. The first Court found that the decree in question was fraudulently obtained by the principal defendant against the plaintiffs, and that the sale in execution of such decree was also fraudulent and invalid, and it accordingly decreed the suit.
2. On appeal by the defendant the Lower Appellate Court, without going into the merits of the case, has determined the suit as not 'maintainable,' relying upon the cases of Mohendro Narain Chaturaj v. Gopal Mondul I.L.R. 17 Cal. 769 and Jagan Nath Gorai v. Watson I.L.R. 19 Cal. 341.
3. In second appeal it is contented for the plaintiffs that this decision of the Lower Appellate Court is wrong, and that the cases cited are clearly distinguishable from the present, inasmuch as not only the execution sale but the decree itself, in execution of which the sale took place, is here impeached on the ground of fraud.
4. We think the contention of the appellants is correct, and that the case must go back to the Lower Appellate Court for trial on the merits.
5. In the cases relied upon by the Court of Appeal below it has no doubt been held that a judgment-debtor, seeking to impeach an execution sale at which the decree-holder is the purchaser, must proceed under Section 244 of the Code of Civil Procedure, and that that section of the Code bars a fresh suit even when the sale is impeached on the ground of fraud. But those cases do not warrant the view taken by the Court below that a suit is not maintainable for setting aside, not only an execution sale, but also the decree itself in execution of which such sale was held on the ground of the decree and the sale being both fraudulent. On the other hand, we think there is ample authority in support of the view we take that such a suit would lie. In the case of Nilmani Burnick v. Puddo Lochan Chuckerbutty B.L.R. Sup. Vol. 379 : 5 W.R. Act X, 20 which was a somewhat similar case, Sir Barnes PEACOCK, in delivering the judgment of the majority of the Full Bench, observed: 'It is a cause of suit in the Civil Courts which have jurisdiction to administer the rules of equity, justice and good conscience, to set aside decrees obtained by fraud and to restrain the parties to the fraud from reaping the fruits of it by enforcing such decrees.' And the observation of Garth, C.J., in the case of Eshan Ghundra Safooi v. Nundamoni Dassee I.L.R. 10 Cal. 357 (367) may also be cited in support of the same view.
6. 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.
7. Whether the decree sought to be set aside was obtained by fraud or not is a question of fact which it will be for the Lower Appellate Court to decide. If it finds that the decree was fraudulently obtained, the suit would lie. But if it does not find that the decree is tainted by fraud, then the suit will not be maintainable.
8. The result then is that the decree of the Lower Appellate Court will be set aside, and the case remanded to that Court to be tried on its merits.
9. Costs will abide the result.