DEVRAJ Vs. HAZARILAL

JUDGEMENT

(1.) THIS is a plaintiff's appeal against the appellate judgment and decree of the learned Civil Judge, Bundi dated the 30th of April, 1953, in a suit for declaration that the decree in suit No. 209 of 1949 dated that 21st of September, 1949 of the court of the Civil Judge, Baran, had been obtained by fraud and that is was void and ineffective against the plaintiff and that it should be set aside. It has further been prayed that the defendant be restrained by an injunction from executing the said decree against the plaintiff.

(2.) ACCORDING to the plaintiff, allegations in suit No. 209 of 1949 were altogether false in that the suit was brought against the plaintiff and one Manmal, who had died long before it was brought. The summons of the suit was not served upon the plaintiff, nor was it served upon Manmal. In fact, it could not be served on Manmal, because he has died before the suit. It was alleged that the defendant committed a fraud inasmuch as he got a false service made and the court was made to believe that service had been effected personally and the plaintiff informed on the 5th of March, 1949 when in fact no service had been effected of any kind upon the plaintiff. It was further alleged that by this fraud, the defendant obtained an ex parte decree against the plaintiff on the 21st of September, 1949. It was also alleged that in fact nothing was due to the defendant from the plaintiff but by depriving the plaintiff of his defence by keeping him in ignorance of the suit, the decree had been obtained.

(3.) THE earliest case on the point is of Abdul Mazumdar vs. Mohamed Gazi Chowdhry (1 ). In that case the plaintiff's case was that summons in the previous suit was not served on him through the fraud of the defendant and that the defendant carefully kept all knowledge of the suit from the plaintiff and caused a false Kaifiyat to be submitted by the serving peon and that thereafter the defendant obtained an ex parte decree and in execution of that decree, he without serving the attachment parwana caused a false Kaifiyat of the attachment to be submitted by the person and in like manner without publishing the sale proclamation caused a false Kaifiyat to be filed and brought the lands to sale on the 6th of (August, 1888, purchasing them himself for a petty amount. All the above allegations of the plaintiffs were found to be proved by the first court. THE first appellate court reversed the decree of the first court on the ground that the suit was not maintainable. It was held that the suit was maintainable and the case was sent back to the first appellate court for decision after examining whether the findings of the first court were correct. In the Privy Council case referred to above (2), the allegations of the plaintiff were that the defendants got a groundless suit for monies instituted against the plaintiff and in order to get the plaintiff out of the way, by a collective suit got him declared a lunatic and by threats, forced him to leave his home and stay elsewhere in secrecy, that they concealed the money suit, got a false return of service and carried through the decree and sale of the properties behind the back of the respondent. It was held that the allegations were plainly an attack not only on the regularity or sufficiency of the service or the proceedings, but on the whole suit as a fraud from beginning to the end. In the case of Kunjbehari Chakrabarty vs. Krishandhone Majumdar (3) referred to above, it was held that - "a decree can be reopened by a new action when the court passing it had been misled by fraud but it cannot be reopend when the court is simply mistaken, when the decree was passed by relying upon perjured evidence, it cannot be said that the court was so misled. Hence, a decree cannot be reopened on the ground that is has been obtained by perjured evidence. To sustain an action for setting aside a decree, the fraud alleged and proved must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the real facts of the case and obtaining that decree by that contrivance. "