Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Babu Manmatha Nath Ray for the Appellant.
  • Babus Dwarkanath Chakraburty and Nagendra Nath Ghosh for the Respondents.
Judges
  • Chitty
  • Walmsley, JJ.
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Babu Manmatha Nath Ray for the Appellant.
  • Babus Dwarkanath Chakraburty and Nagendra Nath Ghosh for the Respondents.
Judges
  • Chitty
  • Walmsley, JJ.
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The original Plaintiff, Kasimji Adamji, whose heirs are now the Plaintiffs on record, sued for:

  • a declaration that the decree in Suit No. 188 of 1899 (before the Fourth Munsif of Howrah) and the execution proceedings consequent on that decree were fraudulent and should be set aside, and
  • confirmation of the Plaintiff in possession of the land described in the plaint schedule.

The central procedural question in this second appeal was whether the present suit was barred because the Plaintiff had previously applied under section 108 of the Civil Procedure Code (C.P.C.) of 1882 to set aside the ex parte decree and that application had been dismissed.

Relevant findings at earlier stages:

  • The trial Court found fraud by Defendant No. 1 in obtaining the ex parte decree but held that no payment had been made to Defendant No. 2 as alleged to procure withdrawal of the suit; it found no fraud established in the execution proceedings; it also found that the plaintiff's predecessor-in-title knew of the auction-sale and delivery of possession before the date the fraud was alleged to have become known, and thus held the suit barred by limitation.
  • On appeal the lower Appellate Court found the fraud relied upon by the Plaintiff satisfactorily established and that the suit was within time (brought within three years of discovery of fraud).
  • The Additional District Judge (the learned Additional District Judge) found that the suit was not barred by reason of the Plaintiff's unsuccessful applications under secs. 108 and 311, allowed the appeal, and decreed for the Plaintiff.
  • Defendant No. 1 (Khirode Chandra Roy) appealed to this Court; his interests were stated to be the same as those of Defendants Nos. 2 and 3.

Legal Issues Presented

  1. Whether the present suit to set aside the ex parte decree and related execution proceedings is barred by the earlier dismissal of the Plaintiff's application under section 108 of the Civil Procedure Code, 1882 (and, relatedly, by the prior application under section 311)?

Arguments of the Parties

Plaintiff's Arguments

  • The Plaintiff alleged that the decree in the rent suit was obtained by fraud: specifically, that Salebhoy Kasemji (the Plaintiff's son) went to the pleader (the pleader being the brother of Defendant No. 1) and paid him Rs. 50 on account of the claim, and the pleader had promised to get the suit withdrawn; instead, Defendant No. 1 aided by Defendant No. 2 (the pleader) and Defendant No. 3 obtained an ex parte decree.
  • The deceit practised upon the Plaintiff's son — which allegedly prevented the Plaintiff's personal attendance and thereby facilitated the ex parte decree — was the primary fraud alleged to set aside the decree.
  • At one point the Plaintiff's pleader argued an alternative formulation of the fraud: that the fraud consisted of false swearing that money was due when in fact it was not. The Court rejected this alternative characterization as not being the fraud actually pleaded.

The opinion does not contain a detailed account of the Defendant(s)' separate legal arguments beyond the fact of appeal by Defendant No. 1 and the defenses addressed in court findings.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Pran Nath Roy v. Mohesh Chandra Moitra That the fact of a Plaintiff having applied unsuccessfully under secs. 108 and 311 did not necessarily bar a subsequent suit to set aside a decree as fraudulent. The Court noted this case but placed it in context with subsequent Privy Council consideration; it did not treat the proposition as universally decisive.
Radha Raman Shaha v. Pran Nath Roy (Privy Council) The Judicial Committee observed that if only the bare fact of an application under sec. 108 was before the Court, it might be impossible to say that the fraudulent matter was brought before the Court on that application. The Court cited this to show that the contents and scope of the earlier sec. 108 application matter; the mere fact of an application does not automatically preclude a later suit unless the fraudulent matter was properly before and decided on that application.
Khagendra Nath Mahata v. Pran Nath Roy (Privy Council) Where fuller particulars had been laid before the Judicial Committee, Lord Robertson held that it was necessary to ascertain whether the refusal of applications under secs. 108 and 311 had already determined the questions now raised; he observed that an attack on the whole suit as a fraud is different from an application limited to service/appearance issues. The Court relied on this for the proposition that the true test is whether the fraud sought to be relied on in the suit was properly in issue and determined under the earlier applications.
Bal Kishan Lal v. Topeswar Singh The Judges remarked that it is settled by the Judicial Committee decisions that a Plaintiff whose applications under sec. 108 (and secs. 244 and 311 for sales) have failed may still maintain a suit to set aside a decree on the ground of fraud. The Court observed that the proposition as broadly stated in that case was too wide in scope and must be read in light of the precise facts in which sec. 108 could not bind the Plaintiff (for example, where the Plaintiff was a minor and not represented).
Mussammat Gulab Koer v. Badshah Bahadur (Minor) (reference) Reference was made to a point about whether an order declining review (sec. 623) would bar a subsequent suit; the Court noted the case was not on all fours with the present matter. The Court said that case had no direct application to the present case, as it raised different procedural issues.
Puran Chand v. Sheodat Rai (Allahabad High Court) Distinguished between frauds: where the only real fraud alleged was connected with non-service of summons, that was a fraud which could be and was decided under section 108, and a Plaintiff could not relitigate it in a subsequent suit. The Court invoked this case to support the view that if the precise fraud relied on was already and properly determined under sec. 108, that question cannot be reopened in a later suit.
Niadar Mal v. Ranuah Husain Applied the same principle: where the question (fraud as to institution of suit against a person as of full age when a minor) was gone into and decided under sec. 108, the Plaintiff could not re-open it in a later suit. The Court cited this authority to reinforce the test that the earlier applications, if addressing the same fraud issue, can be conclusive.

Court's Reasoning and Analysis

The Court proceeded by identifying the precise fraud pleaded by the Plaintiff and then deciding whether that precise issue had been properly raised and determined in the earlier application under section 108 so as to bar the present suit.

Key analytical steps:

  1. Clarification of the pleaded fraud: The Court examined the plaint (first seven paragraphs) and concluded that the fraud alleged was not a defect in service or in the rent suit's pleadings, but was the deceit practised upon the Plaintiff's son (Salebhoy Kasemji): that he went to the pleader, paid Rs. 50 on account of the claim, and was led to expect the suit would be withdrawn; despite that, the defendants obtained an ex parte decree. Thus the central fraud alleged was the prevention of the Plaintiff's personal appearance by means of deceit practised on his son/agent, facilitating the ex parte decree.
  2. Assessment of what was before the section 108 application: The Court noted that in the application under sec. 108 the trial court had fully tried the matter and found that the Plaintiff had failed to prove the arrangement with the pleader or that Rs. 50 had been paid; the sec. 108 application was dismissed on that basis, and it appeared the Plaintiff was well aware of the suit and the hearing date.
  3. Comparison with authorities: The Court reviewed authorities (including Privy Council decisions and Allahabad High Court decisions) and distilled the governing test: whether the fraud relied upon in the suit was a question which had been properly in issue and determined on the earlier application(s) under secs. 108 (and, if relevant, 311). The Court observed that earlier decisions permitted a suit despite failed sec. 108/311 applications only where the issues decided in those applications did not encompass the fraud now alleged (for example, where the earlier applications were limited, or the Plaintiff was a minor and not properly represented).
  4. Application of the test to the present facts: Because the precise fraud alleged in this suit (that Kasemji Adamji was prevented from appearing by the deceit practised on his son) had been fully tried and found against the Plaintiff in the sec. 108 application, the Court held that the Plaintiff could not now re-open that same issue in a fresh suit.
  5. On sec. 311: The Court deemed it unnecessary to decide the sec. 311 point separately, reasoning that if the decree could be set aside in the suit the execution proceedings would likewise fall; conversely, if the decree stands, the sec. 311 decision would rest on its own merits.

Based on this analysis, the Court concluded that the prior order under section 108, after full trial on the question of the specific fraud relied upon, was binding so far as that precise issue was concerned and barred the Plaintiff from maintaining the present suit on the same ground.

Holding and Implications

Holding: The appeal is allowed. The Plaintiffs' suit is ordered to be dismissed with costs in all the Courts.

Implications:

  • Direct effect: The Plaintiffs will not obtain the relief of setting aside the ex parte decree or the execution proceedings on the ground of the particular fraud alleged (deceit practised on the Plaintiff's son to prevent the Plaintiff's attendance), because that issue was already tried and decided against them in an earlier application under section 108.
  • No broader or new legal principle beyond the application of existing authorities was announced; the Court applied established tests from previous decisions: namely, that whether an earlier application under secs. 108/311 bars a subsequent suit depends on whether the precise question of fraud was properly raised and determined in those earlier proceedings.
N.G
Appeal allowed.
Show full summary ...

    Khirode Chandra Roy v. Ashtullabu

    In this case the original Plaintiff Kasimji Adamji, whose heirs are now the Plaintiffs on the record, sued for a declaration that the decree in suit No. 188 of 1899 in the Court of the fourth Munsif of Howrah and the execution proceedings resulting on that decree should be set aside as fraudulent, and the Plaintiff confirmed in possession of the land described in the schedule to the plaint. The sole question arising in this second appeal is whether the present suit is barred by reason of an order under sec. 108 of the Civil Procedure Code of 1882 dismissing an application of the present Plaintiff to set aside the ex parte decree in suit No. 188 of 1899. The Court of first instance found that there was fraud on the part of Defendant No. 1 in obtaining the ex parte decree but that no payment was made to the Defendant No. 2, as alleged, for the purpose of getting the suit withdrawn. As to the execution proceedings, that Court was of opinion that no fraud had been established. It also found that the Plaintiff's predecessor-in-title knew of the auction-sale and of the possession being delivered to the Defendants before the date when it was alleged that fraud had become known to him, and it accordingly found that the suit was barred by limitation. On appeal by the Plaintiff, the lower Appellate Court found that the fraud relied upon by the Plaintiff was satisfactorily established, and that the suit was within time, having been brought within three years of the date when the fraud was discovered. On the third point—which is the point before us—the learned Additional District Judge found that the suit was not barred by reason of the Plaintiff's unsuccessful applications under secs. 108 and 311 of the Civil Procedure Code of 1882. He accordingly allowed the appeal and gave the Plaintiff a decree. Against that the Defendant No. 1, Khirode Chandra Roy, has appealed to this Court. His interests are the same as those of Defendants Nos. 2 and 3.

    A number of cases have been cited before us. It was held by this Court in the case of Pran Nath Roy v. Mohesh Chandra Moitra(1) that the fact of the Plaintiff having applied unsuccessfully under secs. 108 and 311 of the Civil Procedure Code of 1882 did not bar the suit then before the Court which was for setting aside a decree as fraudulent. That case and a cognate case went up on appeal to Her Majesty in Council. The case just referred to is reported as Radha Raman Shaha v. Pran Nath Roy. There their Lordships of the Judicial Committee said that they had nothing before them but the bare fact that the Plaintiff had endeavoured to get an ex parte decree set aside under sec. 108, C.P.C, under which the Court might try whether the summons had been served or whether the Plaintiff had been prevented by any sufficient cause from appearing. It was, therefore, impossible for them to say that the matter now alleged as fraudulent came in any way before the Court under the application which was made by virtue of sec. 108. In the cognate case of Khagendra Nath Mahata v. Pran Nath Roy more particulars were laid before their Lordships. Lord Robertson, who delivered the judgment of the Court, said: “It is, therefore, necessary to ascertain what are the true grounds and scope of the present suit, in order to see whether the refusal of the applications under the sections specified has already determined the questions now raised.” After setting out the allegations made by the Plaintiff, he said: “These allegations are plainly an attack, not on the regularity or sufficiency of the service or the proceedings, but on the whole suit as a fraud from beginning to end.” The Privy Council accordingly held that the limited orders under secs. 108 and 311 would not bind the Plaintiff in that suit where the whole suit itself was attacked as a fraud. In the case of Bal Kishan Lal v. Topeswar Singh the learned Judges remarked: “It is now well settled by the decision of the judicial Committee” (in the cases to which we have just referred) “that it is open to a Plaintiff, whose applications to set aside an ex parte decree under sec. 108 and the sale consequent thereon under secs. 244 and 311 of the Code of 1882 have been in-fructuous, to maintain a suit to set aside the decree on the ground of fraud or for any other valid reason.” If the judgment of the Judicial Committee to which we have just referred be carefully read, it will be seen that proposition is too broadly stated. In that case, however, it was obvious that the order under sec. 108 could not bind the Plaintiff. The Plaintiff was a minor at the date of the original decree and was not represented by any guardian. Some person, it does not appear who, made an application on behalf of the Plaintiff while he was still a minor to have the ex parte decree set aside. That application, however, was dismissed for default, and a later application to restore it was subsequently rejected. Obviously the Plaintiff in that case could not be said to be bound by the orders which had been made nominally against him when he was a minor and unrepresented. The case of Mussammat Gulab Koer…Plaintiff, v. Badshah Bahadur (Minor)…Defendant, . to which reference was made has really no application to the present case as the point there was whether an order made under sec. 623 declining to review a decision would bar a subsequent suit. The two cases do not rest upon precisely the same footing. The true test seems to be whether the fraud in respect of which it is sought to set aside the decree was a question which was properly in issue in the application under sec. 108. It seems unnecessary to consider the question of the application under sec. 311. If the decree can be set aside in this suit, the execution proceedings consequent upon it would likewise be set aside. If the decree stands, then the decision of the application under sec. 311 would rest upon its own facts and upon its own merits. It seems, therefore, necessary to see what the fraud actually alleged by the Plaintiff was. A perusal of the first 7 paras, of the plaint shows that the fraud alleged in this case was not in the rent suit itself but was the deceit practised upon the Plaintiff or rather upon his son, by which the then Plaintiffs secured the absence of the present Plaintiff Kasimji Adamji on the date that the suit came on for hearing. The allegation was that Salebhoy Kasemji had gone to the pleader and had paid him Rs. 50 on account of the claim which was just under that sum, and the pleader who was the brother of Defendant No. 1 had promised that he would get the suit withdrawn. Instead of doing that, the Defendant No. 1 aided by Defendant No. 2, his brother, the pleader, and Defendant No. 3 applied for and obtained an ex parte decree. There was in this case no doubt that the money was due, as claimed, by the Plaintiff. The court which tried the application under sec. 108 found that the Plaintiff had failed to prove the arrangement made by Salebhoy Kasemji with the pleader for the withdrawal of the suit or that the Rs. 50 was paid. The application under sec. 108 was accordingly rejected as it appeared that the Plaintiff Kasemji Adamji was well aware of the suit and of the date when it would come on for hearing. That appears to be the precise fraud, on which it is now sought to set aside that decree. An attempt was made by the learned pleader for the Plaintiff to argue that the fraud in obtaining the decree was not that, but was the false swearing that money was due when, as a fact, it was not due. That, however, is not correct. The fraud alleged was the deceit which was practised upon the Plaintiff's son, and which no doubt facilitated the passing of the ex parte decree. We have not been referred to any case in this court precisely in point; but there are two cases decided by the Allahabad High Court in which this distinction has been drawn. In the case of Puran Chand v. Sheodat Rai, it was pointed out that the only real fraud alleged was connected with the non-service of summons. That was a fraud which could be and was decided in the application under sec. 108. It was, therefore, held that the Plaintiff could not be allowed to again litigate that question in a subsequent suit. The Privy Council cases above referred to were distinguished on that ground. In Niadar Mal v. Ranuah Husain, the same view was taken. There the suit was brought by the Plaintiff to set aside a decree on the ground of fraud, the fraud alleged being that the suit had been improperly instituted against the Plaintiff as of full age when he was, in fact, a minor. In the application under sec. 108 that question was gone into and was found against the Plaintiff. It was held that he could not be allowed to re-open that question in a subsequent suit. If the remarks of Lord Robertson to which we have above referred be read carefully, it will be seen that their Lordships clearly anticipated that the refusal of applications under secs. 108 and 311 might determine the question of fraud on which the subsequent suit was based. The point in every case must be whether such question have been properly raised and determined on such applications. In the case before us the fraud alleged and sought to be proved was clearly the prevention of Kasemji Adamji, the original Plaintiff, from appearing as Defendant in the previous suit. That was found against him in his application under sec. 108 after a full trial and we are of opinion that he cannot be allowed to reopen it in the present suit in which he seeks relief on precisely the same ground.

    We accordingly allow the appeal and order that the Plaintiffs' suit do stand dismissed with costs in all the Courts.

    N.G
    Appeal allowed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Khirode Chandra Roy v. Ashtullabu
    (Apr 12, 1916)