1. Ram Baran Roy and Mohipat Roy were two brothers. Defendant No. 2 and Balak Roy, father of defendant No. 6, were the sons of Ram Baran and defendants Nos. 1, 3 and 5 were the sons of Mohipat.
2. On the 4th of March, 1898, one Gobardhan Mahto executed a mortgage in respect of 10 bighas 13 cottahs of land in favour of defendants Nos. 2 and 3 and one Sheo Narain Mahto defendant No. 4 who is a relation of the plaintiffs, for Rs. 155 out of which Rs. 100 belonged to defendants Nos. 2 and 3 and Rs. 55 to defendant No. 4. The rate of interest was Re. 1 per mensem per hundred and 2 per cent, per mensem if the repayment was not made on the due date.
3. On the 25th March 1900 the said Gobardhan Mahto executed a zarpeshgi mortgage in favour of defendants Nos. 5 and 6, the brothers of defendants Nos. 3 and 2 respectively, for Rs. 299, mortgaging a part of the lands covered by the first mortgage of 1898. Out of this amount Rs. 121 was paid to the plaintiff in payment of some previous debt, Rs. 155 the principal of the 1st mortgage of, 1898 was kept in deposit with the mortgagees for payment to the mortgagees i.e., defendants Nos. 2, 3 and 4 alleging that the interest upon the same had been paid up to date and Rs. 22 was paid in cash to the mortgagor.
4. On the 29th August 1900 the same mortgagor executed a zarpeshgi lease in favour of plaintiffs and defendant No. 7 in respect of the mortgage lands for Rs. 499 which was made up as follows: Rs. 299 deposited for repayment of the 2nd zarpeshgi dated 25th March 1900 to defendants Nos. 5 and 6, Rs. 127 for payment of the first mortgage, being Rs. 100 principal and Rs. 27 interest and Rs. 73 paid in cash.
5. The Rs. 299 under the mortgage of the 25th March 1900 was paid up and the bond returned. A sum of Rs. 160 also is endorsed on the first mortgage bond of 1898 as received by defendants Nos. 2 and 3 on account of their shares in the presence of Sheo Narain defendant No. 4 on account of the first mortgage of 1898: therefore, the defendants Nos. 5 and 6 received the full amount of Rs. 155, and the defendants Nos. 2 and 3 received Rs. 160 and they had received the whole interest up to 25th March 1900 as recited in the mortgage of that date. The defendants Nos. 2, 3, 5 and 6, therefore, received the principal of Rs. 155 in full plus interest for 2 years and 7 months up to 25th March 1900--Rs. 96 odd plus Rs. 160 which would satisfy the whole principal of Rs. 155 with interest up to 29th August 1900 less about Rs. 2. Thus the defendants 2, 3, 5 and 6 received the whole principle twice over and the whole interest minus about Rs. 2 which may have been remitted. The endorsement on the first mortgage bond says that the bond was returned to the plaintiffs in the presence of Sheo Narain. It was, however, not returned and one of the defendants deposes it was returned to the plaintiffs who made it over at once to Sheo Narain. In any case the bond was not returned and a suit having been brought by Sheo Narain, an ex parte decree was obtained against all the defendants, Nos. 2, 3, 5, 6 and the plaintiffs and their co-sharer defendant No. 7 on the 17th August 1903. On the 22nd August 1904 Sheo Narain assigned the decree to defendant No. 1 who executed the decree and purchased the mortgaged property on the 8th November 1905 and took delivery of possession. There. was a dispute as to actual delivery but a proceeding under Section 145 of the Criminal Procedure Code having ousted the plaintiffs, they have brought this suit on the allegation that Sheo Narain was a mere name lender, that defendants Nos. 1, 2, 3, 5 and 6 were all members of a joint family who having received payment in full, still brought a clandestine suit in the name of Sheo Narain, took out secret execution and made a secret purchase. They further prayed that if Sheo Narain was proved to have obtained a real decree they might be allowed to redeem.
6. The Court of first instance held that defendant No. 1 was separate from his cousins and brothers and had made the purchase for himself, that Sheo Narain had really lent Rs. 55 and had not been repaid so that the decree was not fraudulent and in the result dismissed the suit but without costs as there were circumstances of considerable suspicion.
7. The second Court has held that the first bond had been virtually satisfied when the Rs. 299 under the second mortgage was paid up; that as defendants Nos. 5 and 6 had not paid up the first mortgage as they ought to to have done, Rs. 160 was due on it and that also was paid by the plaintiffs who, if they had known that Sheo Narain's Rs. 55 were not paid, would have paid up the same at once: that as Sheo Narain's dues were not paid up the decree was not fraudulent but that, as plaintiffs were under a bona fide mistake that the mortgage had been paid up on account of the fraud of defendants Nos. 1--6, plaintiffs were entitled to get an opportunity of redeeming and a decree for redemption was passed for payment to defendant No. 1 of Rs. 155, the amount lie paid for the purchase of the decree.
8. It is contended in second appeal (1) that no case of mistake was made by the plaintiffs in their plaint and even if mistake were made out the decree and sale thereunder, not being tainted with fraud, could not be opened up so as to let in the right of redemption which has been wiped off by the sale and that there is no evidence of any fraud by defendant No. 1, however guilty defendants Nos. 2 and 3 or 5 and 6 may have been there can be no doubt that defendants. Nos. 2 and 3 and 5 and 6 have, as the lower appellate Court has found, cheated the plaintiffs right and left. There is no direct evidence, however, that either defendant No. 1 or defendant No. 4, through whom he claims, made any false statement to the plaintiffs so as to induce them to believe that the debt under the mortgage bond of 1898 had been fully satisfied. The plaintiffs were not lulled into security by any proved misrepresentation on the, part pf defendant No. 1 or his assignor so that they are not entitled to any relief on the ground of mistake.
9. There is evidence on the record, however, that the plaintiffs had more than once paid-up the whole amount of the mortgage debt, that the summonses in the case of Sheo Narain were not served upon them and that they knew nothing of the suit or the proceedings in execution. The learned Subordinate Judge has found upon this evidence that the plaintiffs 'laboured under a bona fide mistake that all the mortgage debt had been paid off.' This finding could not be arrived at unless the learned Judge believed that the plaintiffs did not receive the summons to the suit and the notice of the execution. If the summonses and notices were suppressed either by Sheo Narain or by defendants Nos. 2 3, 5, 6, acting in his name a gross act of fraud was committed on the Court in obtaining the ex parte decree and so far as the plaintiffs are concerned this decree must be Considered as fraudulent in law. It is contended that the finding of the appeal Court that the decree was not fraudulent is one of fact and not amenable to reversal in second appeal. We think, however, that the conclusion arrived at is one of law from facts found on the evidence and we are within our rights in holding that the conclusion is wrong. Section 44 of the Evidence Act provides that a party to a suit can shew that a judgment standing against him was obtained by fraud and the plaintiffs are perfectly entitled to shew that the decree of Sheo Narain to which they are parties on the face of the record was obtained by fraud and is, therefore, not binding upon them.
10. There is also another view of the case. The plaintiffs may upon the findings very well contend that they were not parties to the decree of Sheo Narain. In the case of Evans v. Noton (1893) 1 Ch. P. 252 at p. 264 : 62 L.J. Ch. 413 : 2 R. 216 : 68 L.T. 271 : 41 W.R. 230, Lord, Justice Lindley is reported to have said 'the defendant has not appeared, and it has been contended that he, therefore, is not a party to the action, but I think he became such when he was served.' If they were no parties to the mortgage suit they are still entitled to redeem the mort gage and that is the only decree that has been given by the learned Subordinate Judge. We think that in any view, of the case the decree appealed against meets the ends of justice and is, therefore, confirmed with costs.