ESMILE UDDIN BISWAS Vs. SHAJORAN NESSA BEWA

JUDGEMENT

(1.) The appellants to this Court, the plaintiffs in the suit out of which this appeal has arisen, prayed for recovery of khas possession of the property in suit on establishment of their title to the same. The plaintiff's claim was based on a purchase at a sale held in execution o? a mortgage decree obtained against one Bazu Molla. The purchasers at the sale were the hairs of the mortgagee Kashiruddin Shah Sheikh, who after their purchase at the Court sale, sold the lands in suit to the plaintiffs. The defendants who resisted the plaintiff's claim in suit, are the brother and the mother of Bazu Molla. Their case was that the mortgage was not a bona fide and valid transaction, that the decree passed on the basis of the mortgage was invalid, and the plaintiff's purchase therefore could not prevail against the title of the defendants as heirs of Bazu Molla, which was not lost by virtue of the sale held in execution of the mortgage decree against Bazu Molla.

(2.) The Courts below have concurrently held that the plaintiffs had not proved the passing of consideration for the mortgage deed executed by Bazu, that Bazu's mother was not; impleaded in the mortgage suit, that the only persons impleaded in the mortgage suit were Bazu's widow and minor son, who had been residing in the mortgagee's house; that an ex parte decree was obtained in the mortgage suit. On these facts and in the circumstances adverted to by the learned Subordinate Judge in his judgment relating to the mortgage, and the purchase of the mortgaged property by that plaintiff's vendors, the learned Subordinate Judge has come to the decision that they were sufficient to indicate that the decree obtained on the mortgage and the sale held thereunder, are fraudulent and collusive affairs, that the decree and sale could not therefore have any binding force against anyone, and that the plaintiffs could not get a decree for possession on the basis of the mortgage decree.

(3.) In view of a series of decisions of this Court on the question arising for consideration in the present case, it is not possible to uphold the decision come to by the Courts below. It Seems to be well settled now, that, where a suit has! been decided, even it was decided ex parte, the decree cannot be set aside or impeached, merely on the ground that the claim of the plaintiff was false; something more should be proved in support of the allegations of fraud. It may also be stated that the position is well established in this Court, now, that in order to impeach a decree upon the ground of fraud, it must be shown that the fraud was practised in relation to the proceedings in Court, and the decree must be shown to have been procured by practising fraud of some sort, upon the Court: sea Muktamala Dasi V/s. Ramchandra Dey , and the cases referred to in the judgment of B.B. Ghose, J. Closely examined, the judgments of the Courts below, in the present case, are no more than a retrial of the merits of the mortgage suit, and determination that the Judge who decided that suit, was mistaken. The Courts below have really dealt with and decided matters relating to the mortgage suit, as if they were sitting on appeal against the decree passed, on the previous occasion. As pointed out by Sir Comer Petharam, G.J. in Mahomed Golab V/s. Mahomed Sulleman [1894] 21 Cal. 612, this they wore not entitled to do. The defendants in the present suit had not in their written statements filed in Court, made the beginning of a case on which the decree and sale, on which the plaintiff's title was based, could be set aside, or impeached; and in accordance-with the trend of decisions in this Court, the conclusion arrived at by the learned Subordinate Judge, in the Court of appeal below, that the decree obtained on the mortgage and the sale held thereunder could not have any binding force against anyone, is not sustainable. In the result the appeal is allowed, the decision and .decrees passed by the Courts below are set aside, and the plaintiff's suit is decreed. The plaintiff's claim to the lands in suit is held to be established, on the basis of the title set up by them in the plaint, and they will recover khas possession of the same.