RAMESHWAR Vs. DIN DAYAL

JUDGEMENT

(1.) Rameshwar appellant filed one suit against Din Dayal respondent on the basis of a promissory note in August 1942. In the same month, he filed another suit on the basis of another promissory note against Din Dayal respondent in the connected second civil appeal No. 269. Rameshwar is a resident of village Nawwa Behar whereas Bhagirath and Din Dayal are residents of village Shankerpur. A process server accompanied by Rameshwar took the summonses to Shankerpur for service on Din Dayal and Bhagirath on 18.8.1942. The process server wrote identical reports on the summonses to the effect that they were offered to the defendants (Din Dayal and Bhagirath), that they refused to accept them in spite of his entreaties and that perforce he had to affix them on their doors. The reports purport to have been signed by the appellant and two witnesses. Neither of the respondents appeared when the suits were called cut for hearing on 16-9-1942 and the Court proceeded ex parte against them and decreed the appellant's claims in full. The respondents did not apply for the setting aside of the ex parte decrees but instead filed two separate suits against the appellant for the cancellation of the decrees. They alleged that the promissory notes on which he filed the suits were forged, that he fraudently prevented them from getting information about the suits by procuring false reports of service of summonses and that consequently the decrees were liable to be set aside on the ground of fraud. They denied that the summonses were offerred to them and were refused by them. The relief sought was that the decrees be set aside and that it be declared that they are null and void as against them. The suits were contested, as was expected. The appellant denied that he was guilty of any fraud in the service of the summonses and asserted that the reports of the service were correct and genuine and that the promissory notes were also genuine. He also took the plea that the suits were not maintainable. The trial Court held that the decrees could not be set aside on the ground that the promissory notes were forged, that the reports of the service of the summonses were correct and that the appellant was notguilty of fraud and dismissed the suits. The respondent went up in appeal to the District Judge allowed their appeals. The learned Judge held that the appellant had perpetrated fraud by obtaining fictitious reports of service on the summonses, that they were really not offered to the respondents, that the respondents had no knowledge of the suits and that the decrees passed against them were vitiated by fraud. He, therefore, declared the decrees to be null and void.

(2.) It was not seriously disputed before me that the decrees could be set aside on the ground that they were obtained by fraud, the fraud being that the respondents were kept back from the knowledge that the suits had been filed against them and would be disposed of finally on 16-9-1942. If there is any doubt I would refer to Jagrup v. Ram Sabad, 1941 Oudh W. N. 1202, in which an ex parte decree was set aside on a similar ground.

(3.) In this second appeal it is not open to the appellant to challenge findings of fact. It has been found by the learned District Judge that be secured false reports of service of the summonses without their having been offered to the respondents. It is admitted that he was present when the process-server is said to have offerred the summonses and the respondents are said to have refused to accept them. When it is found, as matters of fact, that neither were the summonses offered to the respondents nor were they refused by them and that the appellant was present, it cannot be doubted that he was in league with the process-server and that he prevailed upon him to write false reports on them that they had been offered to, and refused by, the respondents. Thereby he prevented the respondents from appearing in Court on 16-9-1942 which was the date entered in the summonses to contest them. This was clearly a fraud and no attempt was made to argue that it was not.