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Gopal Porai Vs. Swarna Bewa and ors. and Gopal Hari Ghose Choudhuri and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.611
AppellantGopal Porai
RespondentSwarna Bewa and ors. and Gopal Hari Ghose Choudhuri and ors.
Excerpt:
fraud, decree obtained by - auction-sale--suit to set aside decree and sale--auction-purchaser not party to fraud--auction-sale not to be set aside. - .....a remand in order that the court below should come to a clear finding on the question whether the auction purchaser, who is a stranger to the suit, was a party to the decree-holder's fraud or became apprised of it before he paid his money. after remand and after taking additional evidence the court of first appeal has come to the conclusion that the auction-purchaser was no party to the fraud and knew nothing of it before he paid the money. on that finding the present appeal, which is by the auction-purchaser, defendant no. 10, must succeed.2. we, therefore, modify the decree made by the learned subordinate judge by setting aside that portion of it in which he directs that the sale should be set aside. in so far as the setting aside of the ex parte decree is concerned, his order will.....
Judgment:

1. This appeal arises out of a suit brought by the plaintiffs in order to have a certain ex parte decree made against them set aside as fraudulent and also to have the sale held in execution of the decree set aside. In the Court of first appeal on the finding that the decree had been fraudulently obtained, the learned Subordinate Judge set aside both the decree and the sale. When the appeal first came before this Court, this Court directed a remand in order that the Court below should come to a clear finding on the question whether the auction purchaser, who is a stranger to the suit, was a party to the decree-holder's fraud or became apprised of it before he paid his money. After remand and after taking additional evidence the Court of first appeal has come to the conclusion that the auction-purchaser was no party to the fraud and knew nothing of it before he paid the money. On that finding the present appeal, which is by the auction-purchaser, defendant No. 10, must succeed.

2. We, therefore, modify the decree made by the learned Subordinate Judge by setting aside that portion of it in which he directs that the sale should be set aside. In so far as the setting aside of the ex parte decree is concerned, his order will remain good.

3. The auction-purchaser appellant will have his costs in all Courts. He is entitled to one hearing fee in this Court.


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