MT LAGANMANI KUAR Vs. RAM GOBINDA SINGH

JUDGEMENT

(1.) This is an appeal under the Letters Patent from a decision of Agarwala, J. in a second appeal arising out of a suit instituted by the plaintiff-appellant to set aside an ex parte decree on the ground that it had been obtained by fraud.

(2.) The material facts of the case are briefly these: In 1919, one Mojibur Rahman mortgaged a two annas proprietary share in village Korawan to one Bamdayal Singh, who was the managing member of a family consisting of himself and defendants 4 to 8. In 1923 Mojibur Rahman executed a usufructuary mortgage bond in respect of 4.64 acres of bakasht lands situated within the proprietary share which he had already mortgaged to Bamdayal Singh, in favour of Rajrani Kuar, wife of defendant 1, Indrapati Kuar wife of defendant 2, Laganmani Kuar, mother of the plaintiff Brijnandan, two other ladies Mt. Sonful Kuar and Khubsurat Kuar, and three persons belonging to another family. Subsequently, Bamdayal instituted a suit on the basis of his mortgage, and having obtained a decree in that suit, he purchased in execution of that decree the two annas share in Korawan which had been mortgaged to him including the bakasht lands which were the subject-matter of the mortgage of 1923, and he also obtained a formal delivery of possession. Some time later he instituted a suit to recover damages for use and occupation against nine defendants including the plaintiff and his mother and the wife and mother of dafendant 2, Nawab, and two of his aunts. In this suit a report was made to the Court by the peon, who had been sent out to serve the summons, that summons had not been properly served on defendants 4 to 7 and certain other defendants. When the report was put up on 15 January 1936, the Court directed the plaintiff Ramdayal to take steps on 11 February 1936, for fresh service of summons upon the defendants who had not been served. On 11th February 1936, the plaintiff Kamdayal asked the Court to expunge the names of the defendants who had not been served from the record and the names of these defendants being expunged and it being found that the other defendants, who had been served, were not present in Court, the suit was taken up ex parte for trial, and the decree, which is impugned in the present suit, was passed. Thereafter, the plaintiff brought the present suit to set aside the decree on the ground of fraud. The items of fraud alleged by them in the plaint are summarised by the first appellate Court in these words: It is alleged in the first place that there was no foundation for the suit, as the proprietary share purchased in the name of Ramdayal belonged to the joint family and Ramdayal was never in possession. As the land held in rehan or usufructuary mortgage also belonged to the joint family, the suit for share of the produce was not maintainable. In the next place, it is alleged that plaintiff 1 was described as major although he was really a minor at the time. In the third place, it is alleged that although the plaintiff was not an ostensible mortgagee, he was made a defendant in the suit though the other members of the family were not. It is further, alleged that the plaint and vakalatnama filed in the suit as well as the verification did not bear the signature of Ramdayal Singh and other members of the family and Nawab Singh had forged their signatures. It is also alleged that no summons or copy of plaint was served on the plaintiffs who were kept out of the knowledge of the suit owing to the fraud of the defendants and that in the suit itself Nawab Singh acted as identifier in the service of summons and falsely deposed to the claim and obtained an ex parte decree; it is further alleged that Nawab Singh got the names of his mother, wife and aunts struck off from the plaint at the time of hearing and the decree was obtained against the plaintiff only.

(3.) The suit was contested by defendants 3 to 9, that is to say, Ramdayal and other members of his family, who filed a joint written statement denying that Ramdayal was a farzidar for the joint family of the plaintiff, that there was any fraudulent suppression of the summons, that the claim in the suit was false and that the suit was filed at the instigation of Nawab Singh. The minority of the plaintiff at the date of the suit and the decree was also denied, and these defendants further pleaded limitation and res judicata.