Kulwant Sahay, J.:— (After stating the facts set out above, proceeded as follows): The important question for decision is whether in a suit to set aside an ex parte decree on the ground of fraud, it is open to the court to consider the question as to whether the claim of the plaintiff in the previous suit was a true or a false claim. The learned District Judge seems to be of opinion that it is not at all open to the court in which the suit to set aside the decree on the ground of fraud is instituted to look into the merits of the previous suit, that the only thing which it can enquire into is as to whether any fraud was perpetrated by the plaintiff in the previous suit in the service of the summons or notices upon the defendant.
I am of opinion that the view taken by the learned District Judge was erroneous. The plaintiffs have in the first place to show that there was no service of summons or notice of the appeal or of the application for review of judgment. They have then to show that the non-service of the summons or the notices was due to a fraud practised by the plaintiff in the previous suit with the object of keeping the defendant in that suit in ignorance of the suit and of preventing him from placing his case before the court. A decree passed by a competent court cannot be set aside by a suit simply on the ground that the decree passed was based on a false claim, nor can a decree be set aside simply on the ground that, there was no service of summons or notices. But, once it is established that there was no service of summons or notices, it is in my opinion open to the plaintiff in the subsequent suit to show that the claim in the previous suit was a false claim and the court can go into the question with the object of determining as to whether there was a wilful and fraudulent suppression of the notices and summons in order to obtain a decree based on a false claim by preventing the defendant from placing his case before the court. In other words, after non-service of the summons is proved it is open to the court to go into the question as regards the merits of the previous suit with the object of finding as to whether there was any motive for the fraud and as to whether fraud was actually perpetrated, and as to whether, if opportunity had been given to the defendant, he could have produced evidence which might have led the court to come to a different decision. The learned Subordinate Judge in the present case first came to the finding that there was no service of summons or notices and then, as he expressly stated in his judgment, he looked incidentally into the merits of the case in order to see whether the plaintiffs in the Agra suit were actuated by fraud.
The view taken by me is supported by authority. In Kedar Nath Das v. Hemanta Kumari Debi the findings of the court of appeal below were (1) that the fact of the previous suit was not known to the plaintiff, and (2) that the said suit was in fact a false suit. From these two findings the third finding was arrived at that the decree obtained in the previous suit was obtained by fraud. Fletcher, J., considered the two apparently conflicting decisions of the Calcutta High Court in Lakshmi Charan Saha v. Nur Ali and in Munshi Mosuful Huq v. Surendra Nath Ray and the learned Judge pointed out that the two decisions could be reconciled when closely looked at. It was pointed out by the learned Judge that the only point decided in Mosuful Huq v. Surendra Nath Ray was that a decree obtained in a suit could not be set aside I in a subsequent suit brought for the purpose on the mere proof that the previous decree was obtained by perjured evidence. It was further pointed out that the mere fact that a decree had been obtained by perjury is not a sufficient ground for setting it aside and that this proposition was never challenged. The learned Judge thereafter proceeded to observe as follows:—
“A different consideration arises where a false case is placed before the court. We have got the decisions in Abouloff v. Oppenheimer and Vedala v. Lawes which show quite clearly that, if the case which was placed before the court was a false one, the court has jurisdiction in a subsequent suit to set aside the decree which was obtained by fraud practised on the court”.
The learned District Judge in the present case referred to Lakshmi Charan Saha v. Nur Ali and to Mosuful Huq v. Surendra Nath Ray. But these decisions were explained in the case of Kedar Nath Das v. Hemanta Kumari Debt just referred to, and I respectfully agree with the view expressed by Fletcher, J., in the said case.
In Damodar Prasad v. Ramsarup Kumar a Division Bench of this Court held that in a suit to set aside a decree on the ground of fraud, if the court comes to the conclusion that summons was not in fact served upon the defendant, it is at liberty to examine the evidence with a view to find out whether there was any foundation for the previous suit, but that it was only for the purpose of enabling it to decide whether the failure to serve the summons was accidental or, deliberate that the court could do so. The same view was taken in Maharani Janki Kuer v. Babu Thakur Rai.
The learned District Judge has referred to Ram Narain Lal Shaw v. Tooki Sao where it is stated that the test as to whether a suit lies to set aside a decree is whether there was fraud practised in relation to the proceedings in court by which the defendant in the original suit was prevented from placing his case before the court, and that until this was found, the court in which the second suit was instituted was not entitled to investigate the question whether the original suit was a false suit or not. Das, J., who was one of the Judges who decided this case, was a party to the decisions in both the subsequent cases of Damodar Prasad v. Ramsarup Kumar and Maharani Janki Kuer v. Babu Thakur Rai, and the learned Judge has explained his view in the later cases. Once it is established that there was fraud practised whereby the defendant was prevented from placing his case before the court, it is no longer necessary to go further into the question and to investigate the question whether the original suit was a false suit or not. Such investigation is necessary only where the non-service of the summons is not sufficient by itself to prove fraud.
Reliance has been placed by the learned Advocate for the respondents upon the following cases:—Manindra Nath Mittra v. Hari Mondal, Nanda Kumar Howladar v. Ram Jiban Howladar Mahanth Ramrup Ghoshain v. Mahabir Singh, Maharani Janki Kuer v. Mahabir Singh and Mahanth Krishna Dayal Gir v. Lakshmi Narain. In Manindra Nath Mitra v. Hari Mondal the defendant in the previous suit appeared, filed a written statement and then absented himself on the adjourned date of hearing. There was, therefore, no fraud committed by the plaintiff in the previous suit whereby the defendant in that suit was prevented] from placing his case before the court, and the suit was really to set aside the decree in the previous suit only on the ground that the claim in the previous suit was not a true claim. It is clear that under those circumstances the court could not investigate the question as regards the merits of the previous suit. In Nanda Kumar Howladar v. Ram Jiban Howladar the decree in the previous suit was passed after contest and, therefore, there was nothing to show that the defendant in that suit was prevented by fraud from contesting the suit. Jenkins, C.J, in that case observed that the character of fraud vitiating a decree would vary with the circumstances of each class of decree, and there is nothing in the decision of this case which would go to show that the court is prevented in a subsequent suit from examining the merits of the previous suit in order to come to a finding on the question of fraud. In Mahanth Ramrup Ghoshain v. Mahabir Singh there was an application to set aside; the previous ex parte decree under the provisions of Order IX, rule 13, Civil Procedure Code, which had been dismissed, and in the subsequent suit the same allegations were made as regards fraud as in the application under Order IX, rule 13, and there is nothing in the decision in that case: which goes to show that the truth or falsity of the claim in a previous suit ought not to be enquired into in the subsequent suit, when fraud was alleged. In Maharani Janki Kuer v. Mahabir Singh the whole foundation of the second suit was that the ex parte decree in the previous suit was obtained upon a false claim: no other fraud was alleged. In Mahanth Krishna Dayal Gir v. Lakshmi Narain there was an application under Order IX, rule 13, Civil Procedure-Code, to set aside the ex parte decree which failed and it was found that there was no fraudulent suppression of processes. These cases, therefore, do not help the respondents upon the question now for decision.
After a review of the authorities, I am of opinion that the view taken by the learned District Judge was erroneous. He has come to no distinct finding as to whether or not there was no service of summons or notices, as was found by the Subordinate Judge. He merely came to a finding that the misdescription of the defendant in the Agra suit was not a fraudulent misdescription. To my mind it is necessary for a proper, decision of the case to come to a finding on the question of fraud as alleged by the plaintiffs on a consideration of the entire evidence in the case. There were specific allegations of fraud in the plaint and they must be investigated into on a consideration of the entire evidence. If the learned District Judge finds that there was no service of summons or notices, it would be open to him to see on the evidence whether the claim in the suit in the Agra Court was a true or a false claim in order to arrive at a finding as to whether there was fraud perpetrated by the plaintiffs in the Agra suit in obtaining the decree. Both sides have referred to portions of the evidence in the case on the question as to whether the claim in the previous suit was a false claim or not. We cannot go into that evidence and decide the point here. It is necessary to look into the whole evidence in the suit in order to come to a finding as to whether there was fraud committed and as to whether the decree was passed with or without jurisdiction.
The decree of the learned District Judge must, therefore, be set aside and the appeal remanded to him for re-hearing after consideration of the entire-evidence in the case. Costs will abide the result.
Allanson, J.:— I agree.
Appeal remanded.