M.N. Mukerji, J.
1. The plaintiff is the appellant in this appeal. The facts, so far as they are necessary for the purpose of the present appeal, are these: The plaintiff* had an order in his favour entitling him to a sum of Rs. 35-2-3 as costs payable to him by the defendant in certain previous litigation which he had with the defendant. In execution of the said order, he took out attachment of the defendant's movables. The plaintiff's case was that when the movables were attached, the defendant paid a sum of Rs. 20 and promised not to prosecute an appeal which he had already preferred against the order which was then under execution, and that, on account of his promise, he, the plaintiff, accepted the said sum of Rs. 20 in full satisfaction of the claim. The plaintiff further alleges that the defendant did not as a matter of fact, withdraw the appeal but proceeded with it and the said appeal was eventually decided ax parte in favour of the defendant, no notices in respect of the appeal having been served upon the plaintiff and the plaintiff not having appeared therein. The plaint goes on to state that after obtaining the said exparte decree, the defendant took out execution not only for the said sum of Rs. 35-2-3 which formed the subject -matter of the appeal but also for the costs awarded to him in that appeal amounting to Rs. 12-1-3, and that in the course of the said execution proceeding of which also no notice was given to the plaintiff, the defendant caused some of the properties belonging to the plaintiff to be atteached and sold and purchased the same himself. Upon these allegations the plaintiff instituted the suit, which has given rise to the present appeal, for setting aside the said ex parte decree passed by the appellate Court and the said execution proceeding, on the ground that they were fraudulently obtained and carried on, The fraud alleged by the plaintiff in the suit was of a two-fold character. It was alleged, first that the arrangement that was entered into by the defendant with the plaintiff, while paying the sum of Rs. 20 as aforesaid, was an arrangement which the defendant fraudulently entered into with him without any intention of acting up to it. Next, it was alleged that the notices of the appeal as also the notices of the subsequent proceedings (e. g. processes of attachment, proclamation, delivery of possession, etc.) were never served upon him and he had no knowledge thereof. On these grounds, the plaintiff sought for the setting aside of the ex parte decree and also of all subsequent proceedings held thereunder.
2. The defence in the case was that there was no such arrangement as alleged by the plaintiff and further that the notices and processes referred to above were, as a matter of fact, served upon the plaintiff.
3. The suit has been dismissed by both the Courts below. The learned Munsif held that the arrangement set forth in the plaint that the plaintiff would accept the sum of Rs. 20 out of Rs. 35 odd in full satisfaction of the decretal amount and that the defendant would not proceed with the appeal had not, as a matter of fact, been arrived at, and that if there was an arrangement, one would not have expected an endorsement of full payment such as there was in this case mentioning the amount on the back of the warrant under which the movables had been attached. He also came to the conclusion that the non-service of the processes as alleged by the plaintiff had not bean proved. On appeal by the plaintiff, the learned Additional District Judge held that the arrangement relied upon by the plaintiff had been proved and that the appeal aforesaid was prosecuted by the defendant in spite of an agreement to drop the proceedings. He, however, came to the conclusion upon the evidence in the case that the notices and processes, referred to above, had been duly served and ha was of opinion that the decree in question was not obtained by fraudulent suppression of summonses. As I have said, upon these findings respectively arrived at by them, the Courts below have dismissed the plaintiff's suit.
4. The plaintiff's contention in the present appeal is this: It having been found by the lower Appellate Court that the appeal in question was prosecuted notwithstanding the agreement to drop the proceedings-it should have been held, in spite of the finding of proper service of notices, that, as a matter of fact, there was fraud which vitiated the decree and therefore the decree should have been set aside. With reference to this matter, it is. only necessary for me to say that, although it was alleged that there was fraud in connection with the agreement that the defendant entered into with the plaintiff by reason of the fact that the defendant never meant to act up to the stipulation which he was entering into, it would not be a fraud of the description which would be sufficient for setting aside the ex parte decree. With regard to this matter the appellant has relied upon Sections 17 and 18 of the Contract Act. Now under Section 17 Clause (3), 'a promise made without any intention of performing it', amounts to fraud. Under Section 19, 'a party to a con-tract whose consent was caused by fraud or misrepresentations may, if he thinks fit, insist that the contract shall be performed and that he shall be put in the position in which he would have been if the representations made had been true.' On the basis of the fraud as set forth above, the plaintiff undoubtedly, if he could establish fraud, could claim a decree against the defendant for damages or he could have insisted that the contract should be performed if it was capable of performance any longer, or he could have asked that he be put in the position, if that were possible, in which he would have been if the representations made had been true. The present suit was not a suit of any of those descriptions. The plaintiff was competent to make a case like this that although he received notices of the appeal, in consequence of the fraud that was practised upon him by the defendant promising to him that he would not proceed with the appeal he was under the impression that the appeal would not be proceeded with and so the decree was fraudulently obtained ex parte. If he bad made a case like that, the question as to whether this fraud led him to believe that the appeal would not be proceeded with would have been one of the material questions to be determined in the case and if established would have enabled the plaintiff to get the ex parte decree set aside. But that was not what he alleged. The plaintiff based his case as to fraud, so far as it affected the decree which ha sought to set aside, upon the ground that there was fraudulent non-service of notices and other processes of Court. Therein ha has failed in the judgment of the lower Appellate Court. In my judgment, although it has been proved that the defendant acted fraudulently in connection with the compromise referred to above, that would not help the plaintiff in getting a decree for setting aside the ex parte decree so long as it is not established that, as a matter of fact, there was fraud in the service of notices and other processes of Court by which the defendant obtained that ex parte decree. This point having been found against the plaintiff by the Courts below, I am of opinion that the plaintiff is not entitled to any relief in this case. In this view of the matter, this appeal must be dismissed with costs.