EKAWARI Vs. JADUNANDAN KAMAT

JUDGEMENT

(1.) This second appeal is directed against the dismissal of the plaintiffs' suit for setting aside a decree on the ground of fraud and for recovery of possession of the properties involved.

(2.) Briefly stated, the plaintiffs' case is that they were in possession of certain lands from which they were forcibly dispossessed by defendant No. 1 on the 15th January, 1956. It is said that the said defendant had claimed to have pur-chased those lands in an execution sale arising out of a suit for money filed by the defendant against the plaintiffs. It is their case that they had no knowledge either of the money suit or of the decree passed therein or the proceedings in execution arising therefrom. The processes in all those proceedings are alleged to have been suppressed fraudulently. On this allegation of fraud, the plaintiffs prayed in this suit for setting aside the aforesaid decree and the execution sale and in consequence thereof for restoration of possession of the properties to the plaintiffs. It is said that it was only after their dispossession in January, 1956, that they had made inquiries and learnt in February, 1956, about the aforesaid fraud. The suit was filed on the 3rd January, 1959.

(3.) The first defendant, who alone contested the suit, raised the plea that he had taken a sale of certain other lands from plaintiff No. 1, Sibu Sah, for a sum of Rs. 375/-, but he could not get possession thereof, because those lands actually belonged to the branch of the uncle of Sibu Sah, and he wanted a refund of the money paid, but, not having got it back from Sibu, he had filed a money suit and got a decree against the plaintiffs Nos. 1 to 3, who alone were in existence at that tune. The aforesaid de-cree was put into execution and he had purchased those lands. During the course of the execution proceeding, once Sital Sah had appeared and filed a claim under Order XXI, Rule 58, of the Code of Civil Procedure. It is said that Sibu had actu-ally made a Farzi transaction of sale in his favour. The miscellaneous judicial case was, however, dismissed. Thereupon. Sital Sah filed a title suit under Order XXI, Rule 63 of the Code against this defendant and the plaintiffs. This was also dismissed for default. This led to a miscellaneous judicial case under Order IX, Rule 9 of the Code, which was dismissed on merits. There was an appeal, which also was dismissed. It is said that the notices were served on the plaintiffs in all those proceedings and that they had definite knowledge of the decree and the execution relating to the money suit,