JAWAHIR Vs. NEKI RAM

JUDGEMENT

(1.) This was a suit by the appellant praying that a decree for money obtained against him by the respondent in Siliguri might be set aside of the ground that it had been obtained by fraud, and that an injunction might be issued restraining the respondent from executing the same. The appellant alleged that the claim on which the decree rested was totally without foundation, that the respondent had taken steps to prevent the institution of the suit from becoming known to him, and that lie knew nothing of it till October 8th, 1911, when the respondent caused some of his property to be attached within the jurisdiction of the Munsif of Fatehabad in the Agra district. The appellant alleged that a cause of action accrued to him on October 11th at the place where the attachment was effected. The Munsif decreed the claim, but on appeal, the District Judge hold that the suit was not maintainable at all. He seems to have thought that the whole of the appellant s ease was that the summons in the suit had not been served on him, and he declined to consider whether there was any foundation for the respondent s suit. The learned Judge has, we think, misunderstood the case. A plaintiff in a case of this kind cannot succeed merely on proving that the summons was not served on him, but if he proves that the former suit had no foundation in fact but was the outcome of previous enmity, that the sommons was not served on him, and that the person who is said to have been present at the service was not there at all, and if he proves other facts also which tend to show that the defendant was anxious to avoid a fair trial of the issue between the parties, it is certainly open to the Court to find that the decree was obtained by fraud. The Munsif found that the appellant had proved all this, and he held that the decree had been obtained by fraud. It seems to us that in a case of this kind the Court can and must go into the whole matter before it can decide the ease with any satisfaction to itself or any one else. That was the view taken in Lakshmi Charan Shaha v. Nur Ali 11 Ind. Cas. 626 : 38 C. 936 : 15 C.W.N. 1010 and it is supported by ample authority. As was said by Lord Robertson in Khagendra Nath Mahata v. Pran Naih Roy 29 C. 395 : 4 Bom. L.R. 363 : 6 C.W.N. 473 : 29 I.A. 99 (P.C.) which was a suit of tin s kind, "the appellant s allegation is an attack, not on the sufficiency of the service of notice but on the whole suit as a fraud from beginning to end." So far as the merits of the case are concerned, we have no hesitation in saying that the proceedings in the lower Appellate Court were not satisfactory.

(2.) It is, however, contended, on the authority of the decision in Dau Dial v. Munna Lal 24 Ind. Cas. 978 : 12 A.L.J. 955 : 36 A. 564 that such a suit as this does not lie at all, except possibly in the Court or district in which the decree impugned was passed.

(3.) That such a suit will lie is beyond doubt. See the remarks of Jenkins, C.J. in Nanda Kumar v. Raw Jiban 23 Ind. Cas. 337 : 41 C.W.N. 68 : 19 C.L.J. 457 and the decisions of the Privy Council in Radha Raman Shaha v. Pran Nath Roy 28 C. 475 : 5 C.W.N. 757 affirming the decision of the High Court reported in Bran Nath Roy v. Mohesh Chandra Moitra. 24 C. 546 and Khagendra Nath Mahata v. Pran Nath Roy 29 C. 395 : 4 Bom. L.R. 363 : 6 C.W.N. 473 : 29 I.A. 99 (P.C.). Other recent instances of such suits are Thakur Prasad alias Shambhoo Narain v. Punkal Singh 8 C.L.J. 485 and Adul Haque v. Abdul Hafiez 5 Ind. Cas. 648 : 14 C.W.N. 695. Incidentally those cases show also that a suit to set aside a decree on the ground of fraud may be brought in a Court other than that by which the impugned decree was passed, and we may observe that if it were otherwise no suit could be brought to set aside a decree obtained by fraud in a Court of Small Causes, however gross the fraud might be.