The facts, which led up to the suit out of which this appeal has arisen, are shortly these:
The Defendant brought a suit in the Court of Small Causes at Krishnagar (in Nadia) for a certain sum of money against the Plaintiff, and obtained an ex parte decree. That decree was transferred for execution to the Munsif's Court at Katwa, and in execution taken out against the Plaintiff a certain property belonging to him was brought to sale, and was purchased by the Defendant himself. Subsequently, he (the Defendant) obtained possession of the said property. Thereupon the present suit was brought by the Plaintiff to have it declared that the ex parte decree, and the sale in execution thereof, were fraudulent and to obtain possession of the property in question. The suit was instituted in the Munsif's Court at Katwa (in Burdwan), that being the Court in which the execution proceedings, including the sale, took place, and within whose jurisdiction the property in suit is situate.
The Munsif, upon an objection being raised in the defence by the Defendant, held that he had no jurisdiction to entertain the suit, so far as it seeks to set aside the decree passed by the Small Cause Court at Krishnagar, and that a regular suit for setting aside the sale was barred by sec. 244 of the Code of Civil Procedure. He accordingly dismissed the suit.
On appeal by the Plaintiff, the Subordinate Judge at Burdwan has come to a different conclusion, relying upon the case of Srimati Nistarini Dasi v. Rai Nanda Lal Bose. He has held that, inasmuch as the property which was sold in execution is situate within the jurisdiction of the Katwa Munsifi, and a suit to set aside the sale must be brought in that Munsifi, the suit was properly brought there, and that the decree which the Defendant obtained in the Court of Small Causes at Krishnagar might be treated as a nullity for the purpose of determining the questions at issue between the parties, if that decree was obtained by fraud. He accordingly set aside the judgment of the Munsif and remanded the case to him for trial on the merits.
Against this judgment, the Defendant has appealed to this Court, and the learned vakil on his behalf has contended that the view adopted by the Subordinate Judge is erroneous, and that inasmuch as the Plaintiff was not in a position to claim any relief unless and until the decree obtained by the Defendant in the Court at Krishnagar was set aside, the Munsif of Katwa had no jurisdiction to entertain the suit, and that it should have been brought in the Krishnagar Court.
The question raised before us is not altogether free from difficulty. In the case of Mewa Lall Thakoor v. Bhujhun Jha it was held that when a decree is sought to be set aside upon the ground of fraud, the proper course is to apply for a rehearing, or a review, to the Court which made the decree. But in more recent cases, it has been held that is not the only course, but that a separate suit lies to have the decree set aside: Abdul Mazumdar v. Mohamed Oazi and Pran Nath Roy v. Mohesh Chandra Moitra. The decree in this case was passed by a Judge of the Small Cause Court, and a separate suit, such as this is, to have the said decree set aside would not lie in that Court, but would have to be brought in the ordinary Civil Court, and if the suit were confined to the decree being set aside, we should have, perhaps, been disposed to hold that it should have been instituted in the Krishnagar Civil Court. But in this case different considerations arise. The suit is not only to set aside the decree, but also the sale which took place in execution in the Katwa Munsifi and also to recover possession of the property sold. In the cases to which we have already referred Abdul Mazumdar v. Mohamed Gazi and Pran Nath Roy v. Mohesh Chandra Moitra, it has been also held that where the decree and the sale held in execution, are impeached upon the ground of fraud, a separate suit would lie to have both the transactions set aside, notwithstanding the provisions of sec. 244 of the Code.
Indeed, as it seems to us, in such a case, two separate suits need not be brought, but the entire relief, to which the Plaintiff is entitled, might be obtained in one and the same suit; and it is obvious that in such a case, the suit ought to be brought in the Court which can give the Plaintiff complete relief. If therefore a suit should be brought in one and the same Court for the purpose of obtaining all the reliefs that the Plaintiff is entitled to, the reliefs asked for in the present case being (1) to have it declared that the decree was fraudulent; (2) to have it also declared that the sale held in execution of such decree was fraudulent, and (3) to recover possession of the land sold, which is situate within the Katwa Munsifi, it seems to us that in order to enable the Plaintiff to obtain effectual relief in one and the same suit, it was rightly brought in the Munsif's Court at Katwa.
In the case of Srimati Nistarini Dasi v. Rat Nanda Lal Bose referred to in the judgment of the Subordinate Judge, where the main object of the suit, brought in the Original Side of this Court, was for administration of the estate, and for a construction of the Will, left by the Plaintiff's husband and where the Plaintiff also asked that certain leases in respect of lands in the 24-Pergunnahs executed by the Defendant, the executor, upon the authority of an arbitration decree that had been passed in the Court of the 24-Pergunnahs, might be set aside, one of the questions raised was, whether the High Court had jurisdiction to entertain a suit, the object of which was, among other matters, to have it declared that the decree obtained in the Court of the 24-Pergunnahs was fraudulent. Mr. Justice Stanley, on a review of the whole of the authorities bearing upon the question, expressed himself as follows:—
“If the Plaintiff's case be true, I am of opinion that a decree so obtained cannot stand, and that this Court has jurisdiction, if not to set it aside, at least to treat it as a nullity and render its effect nugatory.”
And this seems to be in accordance with the provisions of sec. 44 of the Evidence Act which runs as follows:—
Any party to a suit or other proceeding may show that any judgment or order or decree which is levant under sec. 40, 41 or 42, and which has been proved by the adverse party was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
We think that in the present suit, the Court at Katwa is competent to go into the question raised between the parties whether the decree obtained in the Court of Small Causes at Krishnagar was properly or fraudulently obtained, and if it be found that the decree was fraudulently obtained, it might well treat it as a nullity, and not binding upon the Plaintiff, and then give the Plaintiff such relief as he might justly be entitled to.
It may not be competent to the Munsif of Katwa to set aside the decree passed by the Small Cause Court of Krishnagar as fraudulent; but we are disposed to think that it is competent to him to investigate the question as to the character and validity of the decree, for the purpose of giving relief to the Plaintiff, such as he may be entitled to, in respect to the land which he has lost by reason of the sale held in execution of that decree.
For these reasons we think that there is no just reason to interfere with the judgment of the Court below in this case. The result is that this appeal is dismissed. We make no order as to costs in this case.
S.C.S
Appeal dismissed.