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Protap Chunder Banerjee and ors. Vs. Krishto Kishore Shaha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal885
AppellantProtap Chunder Banerjee and ors.
RespondentKrishto Kishore Shaha and ors.
Excerpt:
plaint, verification of - allegation of fraud--practice. - .....commencement of his judgment, and as that is a matter which concerns civil courts generally, we think it right to add a few words upon the subject.4. the suit was brought to set aside a sale in execution of a decree, upon the ground that the land, the subject of the sale, was in part the plaintiff's property. their case was, that they had been fraudulently and collusively kept in ignorance of the proceedings in the suit and of the execution and sale which followed, and that all the defendants were either parties or privies to the fraud. in fact, if the plaintiffs were right, the fraud that was practised upon them was undoubtedly a very gross one.5. now, this is precisely the sort of case in which the plaintiffs should have been required, in the absence of some very good reason to the.....
Judgment:

Richard Garth, C.J.

1. We think that this appeal must be dismissed. The plaintiffs, in order to establish their case, were bound to prove that the irregularities mentioned in the plaint had been committed with a view to defraud them. Those irregularities might have been as well the result of mistake as of fraud. It was necessary, therefore, for the plaintiffs to prove the fraud, and fraud has been negatived by both the lower Courts. They also find that the purchaser at the sale was a bona fide purchaser for value.

2. The Judge's decision, therefore, was quite right.

3. We also entirely agree with what he says at the commencement of his judgment, and as that is a matter which concerns Civil Courts generally, we think it right to add a few words upon the subject.

4. The suit was brought to set aside a sale in execution of a decree, upon the ground that the land, the subject of the sale, was in part the plaintiff's property. Their case was, that they had been fraudulently and collusively kept in ignorance of the proceedings in the suit and of the execution and sale which followed, and that all the defendants were either parties or privies to the fraud. In fact, if the plaintiffs were right, the fraud that was practised upon them was undoubtedly a very gross one.

5. Now, this is precisely the sort of case in which the plaintiffs should have been required, in the absence of some very good reason to the contrary, to verify the plaint themselves; one of them, at any rate, should have done so. Instead of this the plaint was not even verified by a pleader or authorized mooktear. It professes to be verified by a person who calls himself an agent of the plaintiffs,' but who acts apparently without any mooktear-nama, and who, according to the finding of the Judge, was an entire stranger.

6. This certainly ought not to have been allowed by the Munsif. In a case where the plaintiffs set up a gross fraud of this kind, and where the case depends mainly, as the Judge considers that it did, upon the personal knowledge of the plaintiffs, it was only right that the plaintiffs, or one of them, should have been required to verify the plaint.

7. The appeal will be dismissed with costs.


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