MOHENDRA NARAIN CHUCKERBUTTY Vs. SHASHI BHUSHAN CHATTERJEE

JUDGEMENT

(1.) The defendant obtained an ex parte rent decree against the plaintiffs and in execution thereof sold the lands in suit and purchased them himself. Plaintiffs Nos. 2 and 3 applied for setting aside the decree under Section 103 of the Civil Procedure Code without success but plaintiff No. 1 deposited the decretal amount under Section 310A, Civil Procedure Code, and had the sale set aside.

(2.) The plaintiffs now sue to set aside the decree as fraudulent and to recover the amount paid under the rent decree. The first Court dismissed the suit holding that the plaintiffs had failed to make out their lakhiraj-title and that as the summons in the rent suit had not been proved to have been suppressed, such a suit would not be sustainable. The lower appellate Court has set aside the decree of the first Court and given a full decree to the plaintiffs holding that they have proved their lakhiraj-title and hence the decree was fraudulent.

(3.) It is contended in second appeal before me that the decree for a refund of the amount of the rent decree cannot be supported as the learned Judge has not come to any finding as to suppression of summons and, secondly, that the lower appellate Court has come to no finding as to the identity of the lands in suit with those covered by the title-deeds of the plaintiffs. As to the second point the finding of the learned Judge that the lands in suit were the lakhiraj lands of the plaintiff is tantamount to a finding that the disputed lands were identical with the lands covered by the title-deeds of the plaintiffs and there does not seem to be any substantial error. As to the first point I find that the learned Munsif found that the suppression of summons was not made out. This finding has not been upset by the lower appellate Court so that the findings amount to this that the rent suit was brought on false allegation and supported by false evidence. That is not, however, a ground on which alone a decree can be declared a nullity and set aside. See Mahomed Golab V/s. Mahomed Sulliman 21 C. 612. The decree for refund, therefore, is unauthorized and must be set aside. The decree declaring the lakhiraj-title of the plaintiffs will stand. Each party to bear its own costs in all Courts.