1. This is an appeal by the defendant against the decision of the learned Officiating Subordinate Judge of Tipperah, dated the 9th September 1916, reversing the decision of the Munsif of Comraillah. The suit was brought by the plaintiff to set aside a decree on the ground that it was obtained by fraud. It is not quite clear from the conclusion arrived at by the learned Judge what exactly he intended to find with regard to the fraud that is alleged to, have been committed in the former suit. First of all, as far as I can gather, the learned Judge seems to have held that there was actual service of the summons in the former suit on the plaintiff. The learned Judge has not found whether, if it was so served, the present plaintiff was prevented by any sufficient cause from appearing when the former suit was brought on for bearing. If he was so prevented, the fact that he had been served with the notice Would be considerably discounted, as lifts been held in some cases notably in the Privy Council case of Khagendra Nath Mahata v. Pran Nath Roy 29 C. 395 : 29 I.A. 99 : 6 C.W.N. 473 : 4 Bom. I.R.363. 8 Sar. P.C.J. 266 (P.C.), where it was found that, although the plaintiff had been served in the earlier suit, steps had been taken to have him declared a lunatic so that possibly he could not attend the Court. That is a matter that must be enquired into by the learned Judge.
2. The next matter is that it is not quite clear whether the learned Judge intended to find that the former suit itself was a fraud or whether he meant to say that having served the present plaintiff in the former suit, what the present defendant did was to obtain a decree merely by supporting the case by false or perjured evidence; for the mere fact that the decree was obtained by false evidence would not be sufficient by itself to have the decree-set aside, the case itself must be found to be a fraudulent one. In our opinion, the more satisfactory way would be to send the case bask to the lower Appellate. Court to have it re-heared and a more definite conclusion of fact arrived at by the 1earned Judge. Costs will abide the result of the re-hearing by the learned Judge of the lower. Appellate Court.
Syed Shamsul Huda, J.
3. I agree.