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Gendu Nasya and ors. Vs. Sadi Bania Alias Sadi Saha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in44Ind.Cas.983
AppellantGendu Nasya and ors.
RespondentSadi Bania Alias Sadi Saha and ors.
Excerpt:
fraud, decree obtained by, suit to set aside - evidence--process suppressed, effect of. - .....was not served on him and that the suit was based upon a forged document. in the trial court the learned munsif found in his favour and made a decree accordingly. in the court of appeal below the learned district judge has. dismissed the suit.2. as to the non-service of summons, if the plaintiff had been able to establish that the usual processes had been suppressed, no doubt, that would have furnished some solid foundation for the suit. the learned district judge, however, has found that the summonses were duly served in the usual course. that part of the case, therefore, goes.3. there remains the case as to forgery. in view of the authorities on the subject, the judgment of the district judge may be in some respects open to criticism in that he has not come to an express finding, but.....
Judgment:

1. This appeal is preferred by the plaintiff. He brought the suit for a declaration that a certain decree which had been obtained against him was fraudulent and of no effect. The plaintiff's case appears to be that summons in the suit in which the decree was made was not served on him and that the suit was based upon a forged document. In the Trial Court the learned Munsif found in his favour and made a decree accordingly. In the Court of Appeal below the learned District Judge has. dismissed the suit.

2. As to the non-service of summons, if the plaintiff had been able to establish that the usual processes had been suppressed, no doubt, that would have furnished some solid foundation for the suit. The learned District Judge, however, has found that the summonses were duly served in the usual course. That part of the case, therefore, goes.

3. There remains the case as to forgery. In view of the authorities on the subject, the judgment of the District Judge may be in some respects open to criticism in that he has not come to an express finding, but we may refer to the judgment delivered by the Munsif in this case. The learned Munsif begins by saying it is scarcely possible to prove frauds of this description by direct evidence. Then he goes on to say that the plaintiffs 'practically' have not been able to adduce any direct evidence. Then he deals with the evidence which the plaintiff did adduce. In view of the kind of evidence and the kind of materials the Munsif had before him and on which he acted I am of opinion that it would serve no useful purpose to remit the case to the District Judge for any further finding. The appeal will accordingly be dismissed with costs.

Walmsley, J.

4. I agree.


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