DURGAGATI BANERJEE Vs. TAHARULLA MIA

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff Taharulla Mia, sought to set aside an ex parte rent decree which was obtained against him by the defendants on 22nd December 1935. This decree was put into execution and some property belonging to Taharulla and some of the other defendants was sold at an execution sale which was held on 20 May 1936. The other defendants in the rent suit applied to set aside the sale and the plaintiff, who was defendant 9 in the rent suit was made a party to these proceedings. The application appears to have been made on the usual ground of material irregularity and fraud in publishing and conducting the sale and also on the allegation that the execution case was not maintainable. The sale was set aside by the first Court on 21 December 1936, but this decision was reversed on appeal on 15 May 1937, and the sale was confirmed on 29 June 1937. There- after, on 18 March 1938, a writ for delivery of possession was issued in favour of the decree-holders and, on 23 March 1938, Taharulla Mia, defendant 9 in the rent suit, instituted the suit out of which this appeal arises. The plaintiff's case was to the effect that the claim against him in rent suit No. 2426 of 193S was false as it suppressed the material fact that there was no privity of contract between himself and the defendants. He further maintained that the summonses were suppressed in the rent suit and the resultant ex parte decree was fraudulent by reason of the said false claim and the alleged fraudulent suppression of the processes. He also alleged that the processes were suppressed when the decree was put into execution and the Court was asked to set aside the decree obtained in rent suit No. 2426 of 1935 and the subsequent proceedings in Execution Case No. 247 of 1936. Beyond the vague statements mentioned above with regard to the alleged falsity of the claim, and the allegations with regard to the supposed fraudulent suppression of the processes the plaint did not set out any detail with regard to the nature of the alleged fraud.

(2.) The case for the defence was to the effect that the claim was true, that the requisite processes were served both in the rent suit and in the execution proceedings and that the plaintiff in fact appeared through a pleader in the suit and took time to file his defence. In the first Court only one witness was examined on behalf of the plaintiff and that witness, beyond making a general statement to the effect that the plaintiff had not been served with summons in connexion with the rent suit and that no process relating to the sale had been served, made no attempt to prove that these processes had been fraudulently suppressed. Evidence in rebuttal was given on behalf of the defendants and the first Court held that it had been established as a fact that the plaintiff had been duly served with the summons in the rent suit and that he actually appeared in that suit and took an adjournment. On this finding, the learned Munsif further held that the question of the bona fides of the claim did not arise and that the plaintiff was not entitled to have the decree against him set aside on the ground that it was fraudulent.

(3.) The learned advocate for the respondents criticises the judgment of the learned Munsif on the ground that it does not contain a further finding with regard to the alleged fraudulent suppression of the processes in the execution proceedings. Having regard, however, to the vague nature of the evidence which was given on this point in the first Court it would not appear that this was a matter upon which the plaintiff placed much, if any, reliance. The onus lay on him to show that there had been fraudulent suppression of the processes not only in the suit but in the execution proceedings. As regards the suit, it was clear that the processes could not have been fraudulently suppressed in view of the fact that the plaintiff actually appeared by pleader at the hearing of the suit and, as regards the execution processes, apart altogether from the fact that it had been decided in a previous proceeding in which the plaintiff waft a party that the sale could not be set aside on account of any material irregularity or fraud in connexion with the publishing of the sale, the plaintiff led no evidence in the suit, from which fraud could possibly be inferred. It is, therefore, clear that the plaintiff failed to establish any fraudulent suppression of the processes either in the suit or in connexion with the subsequent execution proceedings.