Nagendra Nath Bose v. Parbati Charan

1. This is an appeal by the second defendant in a suit to set aside an ex parte decree. The, plaintiffs hold the disputed land within a tenure which was sold under the Public Demands Recovery-Act, on the 7th September 1908 and was purchased by the first defendant. The second defendant purchased the tenure from the first defendant and on the 18th June 1909 instituted a suit forrent against the plaintiffs. The suit was decreed ex parte on the 16th July 1909; in execution of this decree, the property was purchased by the decree-holder on the 20th November 1909. Meanwhile proceedings had been instituted for cancellation of the sale under the Public Demands Recovery Act, on the ground amongst others that no notice had been served under Section 10 and that consequently the proceedings were invalid and inoperative. The sale under the Public Demands Recovery Act was set aside for the reasons stated on the 29th March 1910. On the 7th May 1910 the plaintiffs commenced this action to set aside the ex parte decree as also the sale consequent thereon on a twofold ground, namely, first, that the decree was vitiated by fraud; and secondly, that as the certificate sale was subsequently set aside the rent-decree also was in essence cancelled. The Court of first instance held that the ex parte decree in the rent suit was not liable to be set aside on either ground. Upon appeal the Subordinate Judge has in concurrence with the Court of first instance held that the decree is not liable to be set aside on, the ground that the certificate sale has been subsequently set aside; but he has also held, herein differing from the Court of first instance, that the rent decree must be set aside on the ground that it had been obtained by fraud. In this view, the Subordinate Judge has set aside the decree and sale and has declared that the title of the plaintiffs has not been affected by the proceedings in the rent suit.

2. On the present appeal by the second defendant the decision of the Subordinate Judge has been challenged on the ground that the facts found by him do not justify the inference that the rent-decree was vitiated by fraud. This position has been contested on behalf of the plaintiffs-respondents, who have further endeavoured to support the decree of the Subordinate Judge on the ground that his decision upon the second question raised was erroneous.

3. In so far as the question raised in the appeal is concerned it is, in our opinion, plain that the view taken by the Subordinate Judge cannot be supported. It is now well settled, as was laid down by the House of Lords in Wallingford v. Mutual Society (1880) 5 App, Cas. 685 at p. 697 : 50 L.J.Q.B. 49 : 43 L.T. 258 : 29 W.R. 81 an I by the Judicial Committee in Gunga Narain Gupta v. Tiluckram Chowdhry 15 C. 533 (P.C.) : 15 I.A. 119 : 12 Ind. Jur. 254 : 5 Sar. P.C.J. 168 that general allegations of fraud, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice: Jyotiprohas Nandi v. Jhowmull Johury 1 Ind. Cas. 784 : 36 C. 134 : 13 C.W.N. 87; Balaji v. Gangadhar 32 B. 255 : 10 Bom. L.R. 276. Where a plaintiff seeks relief on the ground of fraud he is bound, under Order VI, Rule 4, of the Code of Civil Procedure, to specify in his plaint the facts which constitute fraud. It is also well settled that a charge of fraud must be substantially proved as laid, and when one kind of fraud is charged, another kind of fraud cannot, upon failure of proof be substituted for it: Abdul Hossein Zenail Abadi v. Charles Agnew Turner 11 B. 620 : 14 I.A. 111. In the case before us, the specific allegation of fraud made in the plaint was to the effect that the second defendant had in collusion with the officers of the Court caused a suppression of the processes in the suit as also in the execution proceedings. No doubt, if this allegation had been established, the plaintiffs would have been entitled to succeed: because it is firmly settled that a judgment will be vacated, if it is proved that the successful party has taken means to prevent service of notice upon the other or has procured a false return of service: Abdul Mozumdar v. Mahomed Gazi Chowdhry 21 C. 605; Mahomed Golab v. Mahomed Sulliman 21 C. 612 and Nursing Das v. Bibi Rafikan 5 Ind. Cas. 198 : 37 C. 197 : 11 C.L.J. 250 : 14 C.W.N. 507. Unfortunately for the plaintiffs, however, the facts found by the Subordinate Judge do not support the conclusion that the processes, either in the suit, or in the execution proceedings were suppressed at the instance of the then plaintiff. The Subordinate Judge had found, so far as the processes in the suit are concerned, that they were not served. He does not find, nor has he stated any facts from which any inference could be drawn to the effect, that this non-service of processes in the suit was in any way attributable to the interference of the plaintiff in the rent suit. It may be conceded, as was laid down by their Lordships of the Judicial Committee in Radha Raman Shaha v. Pran Nath Roy 28 C. 475 (P.C.) : 5 C.W.N. 757 and. Khagendra Nath Mahata v. Pran Nath Roy 29 C. 395 : 29 I.A. 99 : 6 C.W.N. 473 that the mere circumstance that a defendant has failed to have an ex parte, decree set aside under Section 108, Code of Civil Procedure, or to have an execution sale set aside on the ground of material irregularity, does not debar him from seeking relief in a suit property framed for the purpose, on the ground that the suit itself was a fraudulent suit and that the proceedings therein were vitiated by fraud. But to enable the plaintiff to succeed in a suit so framed he must specially allege the circumstances of fraud and he must prove the fraud as laid in the plaint. Reference has been made on behalf of the respondents to the decision of Nemai Chand Kanji v. Deno Nath Kanji 2 C.W.N, 691 where certain circumstances were stated as indicia of fraud. That decision, however, is of no assistance to the respondents as the Subordinate Judge has not found all those circumstances to exist in the case before us. We must hold accordingly that the facts found by the Subordinate Judge do not constitute fraud and do not afford any basis for concellation of the ex parte decree in the rent suit.

4. The next, question for consideration is whether the Subordinate Judge in concurrence with the Court of first instance has taken an erroneous view as to the effect, if any, of the reversal of the certificate sale upon the decree in the rent suit. At the time when the suit for rent was instituted, the second defendant was the only person competent to maintain a suit for rent. He had purchased the property from the first defendant, who was the purchaser at the sale under the provisions of the Public Demands Recovery Act. He duly obtained the sale certificate from the Revenue Authorities, was placed in possession of the property by them and subsequently got his name registered under the Land Registration Act. At the time of the institution of the rent suit he was consequently the only person who could claim to recover rent from the tenants. Indeed, the tenants were not entitled under the provision of Section 78 of the Land Registration Act, and Section 60 of the Bengal Tenancy Act, to plead in answer to the claim that rent was due to another person. The decree was made by a Court of competent jurisdiction and was executed by the Court which made it, The sale, it has been found, was regularly held. Under these circumstances, we cannot hold that the fact that the certificate sale, which was the root of the. title of the second defendant, was subsequently set aside did, in any way, affect the validity of the decree in the rent suit. The question of the effect of the cancellation of a decree upon intermediate acts based on it may sometimes be not altogether free from difficulty; but as pointed out in Simpson v. Hornbeck 3 Lans. 53 one principle is well settled, namely, a judgment pronounced by the Court, upon an erroneous view of the law and subject, therefore, to be reversed by an Appellate Tribunal, is treated as valid for all purposes of protection or justification to the party acting under it before, reversal, and the same rule applies where the judgment is vacated for irregularity or like reason not attributable or chargeable to the plaintiff or for which he is not actually or constructively to blame. In the case before us, the certificate under the Public Demands Recovery Act and the sale consequent thereon were set aside because the notice under Section 10 had not been duly served; for this irregularity, however vital it may be, the purchaser at the certificate sale, a stranger to the proceedings, clearly, cannot be held responsible and it is not possible on any legal principle, to justify the view that all acts of the purchaser on the basis of his purchase at the certificate sale should be deemed nullified as soon as the sale was set aside. The effect of the reversal of the certificate sale is that as between the original tenure-holder and the purchaser at the certificate sale or his representative-in-interest', the latter becomes liable to make restitution to the former. But it does not follow that all legal processes, duly and regularly taken at a time when the title of the certificate purchaser or his representative was in full force, were vitiated by the reversal of the certificate sale. A fruitless attempt has been made to invoke the aid of the well-established doctrine that the Court may, in exceptional cases, take notice of events which have happened since the institution of the suit so as to do complete justice between litigants: Ram Ratan Sahu v. Mohant Sahu 6 C.L.J. 74 at p. 78 : 11 C.W.N. 782; Ramyad Sahu v. Bindeswari Kumar Upadhay 6 C.L.J. 102; Udit Chobey v. Rashika Prasad Upadhya 6 C.L.J. 662 : 3 M.L.T. 41. Nor is there any real analogy between the present case apd the class of cases to which reference was made, namely Shama Purshad Roy Chowdery v. Hurrow Purshad Roy Chowdery 10 M.I.A. 203 at p. 212 : 3 W.R. 11 (P.C) : 19 E.R. 943 : 2 Suth. P.C.J. 103 and Kali Churn Dutt v. Jogesh Chunder Dutt 1 C.L.R. 5. : 3 C. 30. In these cases it was held that where decrees have been made on the basis of a decree in an earlier suit, which was subject to the result of an appeal, the reversal of the earliest decree operated in essence as a reversal of the subsequent decrees based thereon. That clearly is a case of an entirely different description. There is also no analogy between the case before us and another class of cases in which it has been held that where an order has been obtained on the basis of a decree, the cancellation of the decree operates to discharge the order made on the basis thereof: Nawab Zain-ul-abdin Khan v. Muhammad Asghar Ali Khan 15 I.A. 12 at p. 15 : 10 A. 166 : 5 Sar. P.C.J. 129; Mina Kumari Bibee v. Jagat Sattani Bibee 10 C. 220; Set Umedmal v. Srinath Ray 27 C. 810 : 4 C.W.N. 692. In our opinion it is plain that the rent-decree and the sale held on the basis thereof have not, in any way, been affected by the cancellation of the certificate sale. Indeed, in the present case, if the plaintiffs were to succeed, the defendant would be deprived of the property he has acquired in satisfaction of his claim for rent, and would nevertheless continue liable to make restitution to the tenure-holder, whom he had dispossessed on the strength of his purchase at the certificate sale; such a position as this cannot be supported on any conceivable principle of justice, equity and good conscience.

5. The result is that, as both the grounds on which the plaintiffs seek to impeach the title of the second defendant fail, this appeal must be allowed, the decree of the Subordinate Judge reversed and that of the Court of first instance restored with costs in all the Courts.