CHOKSI BHUDARBHAI MATHURBHAI Vs. PURSHOTTAMDAS BHOGILALA

JUDGEMENT

(1.) Mr. N. C. Shah learned advocate of the appellant has raised two contentions-(1) that a suit to set aside the decree on the ground of fraud in the service of summons is not maintainable; and (7) that on the facts of the case the fraud alleged in the plaint is not proved. Mr. Shah was urged that a suit is not competent to set aside an ex parte decree on the ground that the service of the summons in the suit was improperly effected as a result of which an ex parte order was passed by the court which passed the decree and the only remedy available to a judgment-debtor in such a case would be to make an application to set aside the ex parte decree under Order 9 Rule 13 of the Civil Procedure Code. It has been urged that Order 9 is a self-contained provision to cover all sorts of cases where an ex parte decree could be set aside and it would therefore not be permissible to a litigant to reagitate a cause that has already been elected once by a competent court save by resorting to that provision. It is said that Article 164 of the Indian Limitation Act prescribes a period of limitation of 30 days from the date of the defendants knowledge of the decree in cases where summons is not duly served and therefore there would be no injustice caused to a defendant against whom an ex parte decree is passed if he is not given a right to file a separate suit to set aside an ex parte decree.

(2.) Reference has been made by Mr. Shah to some decided cases in this connection where the question of maintainability of a suit to set aside a decree has been considered Mr. Shah has relied on the case of Puran Chand v. Sheodat Rai I. L. R. 29 Allahabad page 212. On a perusal of the facts in that case it will be found that the only real fraud alleged was connected with the non-service of summons and that question was fully gone into and decided by the court in an application under sec. 108 of the Code of Civil Procedure. That case therefore will have no application to the facts of the present case where no such application has been made.

(3.) The next case on which reliance has been placed by Mr. Shah is I.L.R. 37 Calcutta at page 197-Narsingh Das v. Rafikan wherein it has held that A fresh suit would not lie to set aside a decree on the mere ground of non-service of summons though it would be maintainable on the ground of fraud. This case is clearly distinguishable as it will appear from the following observations at page 201 :