1. This appeal arises out of a suit which was instituted by the plaintiff for setting aside a decree and a sale held in execution thereof on the ground of fraud. The suit has been decreed by both the Courts below. The defendants 1 to 3 have preferred this appeal. The plaintiff's case was that he held a jama under the 4 annas share in a certain taluk for which he was to deliver 11 katis of paddy as rent per year, that defendants 1 to 3, who were the plaintiff's landlords, instituted a suit for rent being suit No. 1883 of 1918 alleging that the plaintiff's jama, together with two other jamas in which the plaintiff was not interested constituted one jama of which the plaintiff and defendants 4 to 9 were tenants, and in collusion with defendants 4 to 9 obtained an exparte decree, fraudulently suppressing the summons that had been issued on the plaintiff and not having the plaintiff properly represented in the said suit and thus having fraudulently obtained decree by adducing perjured evidence.
2. The learned Munsif held that there was no evidence to show that the summons in the suit was served upon the plaintiff who was a minor at the time or on his natural guardian Amin-addi who was his maternal uncle and with whom he was living at the time. He, however, found that the non-service could not be attributed to the interference of defendants 1 to 3 who were the plaintiffs in the rent suit and, therefore the plaintiff was not entitled to any relief on that ground. He, held, however, that the suit was a false one and therefore, the decree was liable to be set aside. The falsity of the suit, so far as the learned Munsiff appears to have found, consisted in this : that the suit was instituted in respect of the rent for the 4 annas share of the three jamas without disclosing the fact that it was only in respect of one of these jamas that the plaintiff was interested and that for this he had to deliver rent in the shape of paddy at the rate of 11 katis a year, There was an appeal preferred from this decision of the learned Munsif by defendant 1 and this appeal has been dealt with by the Subordinate Judge.
3. The findings of fact which the learned Subordinate Judge has recorded are somewhat difficult to comprehend and indeed some of the findings which he has so recorded have very little to do with the questions which are relevant in a suit for setting aside a decree on the ground of fraud. He has held in the first instance that the defendants 1 to 3 in the rent suit No. 1883 of 1918, in which they were the plaintiffs, treated the three jamas as one jama and there is no evidence to show that rent had been realized from the present plaintiff of the three jamas treated as one, and further, that so far back as 1308, the said defendants 1 to 3 or some of them had accepted a kabuliyat from the plaintiff's father in respect of the separate jama which the plaintiff alleged, and that the record-of-rights also was in plaintiff's favour. He thus found that the claim in the rent suit was a false one.
4. Having done so he proceeded to consider the question whether the plaintiff was properly represented in the said suit. He held in one passage in his judgment that the natural guardian of the plaintiff who was then a minor was not properly communicated with in respect of the said suit. But later on he makes an observation which detracts to a certain extent from the strength of the finding, the said observation being to the effect that, even if the natural guardian had notice of the rent suit, and for that reason the guardian appointed by the Court be treated as having been validly appointed, the latter did not in point of fact take any interest in the plaintiff's case and did not take proper care to defend the said case on behalf of the plaintiff. As regards the question as to whether notice of the suit had been given to the natural guardian the finding of the learned Subordinate Judge is, therefore, not very clear. As regards service of notice on the plaintiff himself there is a passage in the judgment of the learned Subordinate Judge which is to the effect that the plaintiff at the time of the suit lived at the house of his maternal grandfather under the guardianship of his maternal uncle. This passage means that at the time of the suit the plaintiff was living in the village Araji Kalikapur, because that is the place where according to the evidence, the house of the maternal grandfather was situated. There is no finding, however, as to where the notice in the name of the plaintiff was addressed, or where it purported to have been served.
5. It is true that in the judgment of the learned Munsiff these matters have been dealt with but in absence of a clear finding on this question by the learned Subordinate Judge it cannot be said either that the notice on the plaintiff himself or the notice on his natural guardian was properly served for the purpose of the provisions of Order 32, Rule 3, Sub-rule 4, Civil P.C. Unless and until it is found, that the provisions of that clause have been infringed it cannot be said that the appointment of the Court guardian was not a valid one. The question, therefore, as to whether the provisions of that clause have been satisfied or not is a question of fact upon which the learned Subordinate Judge will have to record clear and proper findings on a consideration of the materials that have been adduced on behalf of the parties in the present case.
6. The mere fact that in the opinion of the Courts below the facts were not correctly placed before the Court by defendants 1 to 3 in the rent suit aforesaid, or that the plaintiff should have been successful in the said rent suit, or that there was non-service of notice upon the plaintiff would not be sufficient for the purpose of enabling the plaintiff to obtain a decree in the present suit. Nor would the fact that the guardian appointed by the Court did not take proper steps to defend the suit be sufficient for the purpose. The plaintiff will have to prove fraud upon which his whole case is based. The Court will have to consider the materials on the record in order to arrive at a conclusion as to whether non-service if any, of the notices under Clause 4, Rule 3, Order 32, Civil P.C., was brought about intentionally or wilfully by the plaintiffs in that suit, that is to say, in order to prevent the plaintiff who was the defendant in that suit from having his case properly represented before the Court. The Court will, therefore, also have to go into the question whether the appointment of the Court guardian was obtained by means of a contrivance resorted to by defendants 1 to 3, the plaintiffs in that suit, with a similar object. These are the material questions which will arise for a satisfactory decision of the present suit.
7. We accordingly set aside the decree passed by the learned Subordinate Judge and send down the case to his Court so that the appeal may now be re-heard, and proper findings being arrived at on these questions the appeal may be disposed of in accordance with law.
8. Costs of this appeal will abide the result.
9. I agree.