NAGENDRA NATH BASU Vs. PARBATI CHARAN KOYAL

JUDGEMENT

(1.) This is an appeal by the second defendant in a suit to set aside an ex parte decree. The, plaintiffs hold the disputed land within a tenure which was sold under the Public Demands Recovery-Act, on the 7th September 1908 and was purchased by the first defendant. The second defendant purchased the tenure from the first defendant and on the 18th June 1909 instituted a suit forrent against the plaintiffs. The suit was decreed ex parte on the 16th July 1909; in execution of this decree, the property was purchased by the decree-holder on the 20th November 1909. Meanwhile proceedings had been instituted for cancellation of the sale under the Public Demands Recovery Act, on the ground amongst others that no notice had been served under Section 10 and that consequently the proceedings were invalid and inoperative. The sale under the Public Demands Recovery Act was set aside for the reasons stated on the 29th March 1910. On the 7th May 1910 the plaintiffs commenced this action to set aside the ex parte decree as also the sale consequent thereon on a twofold ground, namely, first, that the decree was vitiated by fraud; and secondly, that as the certificate sale was subsequently set aside the rent-decree also was in essence cancelled. The Court of first instance held that the ex parte decree in the rent suit was not liable to be set aside on either ground. Upon appeal the Subordinate Judge has in concurrence with the Court of first instance held that the decree is not liable to be set aside on, the ground that the certificate sale has been subsequently set aside; but he has also held, herein differing from the Court of first instance, that the rent decree must be set aside on the ground that it had been obtained by fraud. In this view, the Subordinate Judge has set aside the decree and sale and has declared that the title of the plaintiffs has not been affected by the proceedings in the rent suit.

(2.) On the present appeal by the second defendant the decision of the Subordinate Judge has been challenged on the ground that the facts found by him do not justify the inference that the rent-decree was vitiated by fraud. This position has been contested on behalf of the plaintiffs-respondents, who have further endeavoured to support the decree of the Subordinate Judge on the ground that his decision upon the second question raised was erroneous.

(3.) In so far as the question raised in the appeal is concerned it is, in our opinion, plain that the view taken by the Subordinate Judge cannot be supported. It is now well settled, as was laid down by the House of Lords in Wallingford v. Mutual Society (1880) 5 App, Cas. 685 at p. 697 : 50 L.J.Q.B. 49 : 43 L.T. 258 : 29 W.R. 81 an I by the Judicial Committee in Gunga Narain Gupta v. Tiluckram Chowdhry 15 C. 533 (P.C.) : 15 I.A. 119 : 12 Ind. Jur. 254 : 5 Sar. P.C.J. 168 that general allegations of fraud, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice: Jyotiprohas Nandi v. Jhowmull Johury 1 Ind. Cas. 784 : 36 C. 134 : 13 C.W.N. 87; Balaji v. Gangadhar 32 B. 255 : 10 Bom. L.R. 276. Where a plaintiff seeks relief on the ground of fraud he is bound, under Order VI, Rule 4, of the Code of Civil Procedure, to specify in his plaint the facts which constitute fraud. It is also well settled that a charge of fraud must be substantially proved as laid, and when one kind of fraud is charged, another kind of fraud cannot, upon failure of proof be substituted for it: Abdul Hossein Zenail Abadi v. Charles Agnew Turner 11 B. 620 : 14 I.A. 111. In the case before us, the specific allegation of fraud made in the plaint was to the effect that the second defendant had in collusion with the officers of the Court caused a suppression of the processes in the suit as also in the execution proceedings. No doubt, if this allegation had been established, the plaintiffs would have been entitled to succeed: because it is firmly settled that a judgment will be vacated, if it is proved that the successful party has taken means to prevent service of notice upon the other or has procured a false return of service: Abdul Mozumdar v. Mahomed Gazi Chowdhry 21 C. 605; Mahomed Golab v. Mahomed Sulliman 21 C. 612 and Nursing Das v. Bibi Rafikan 5 Ind. Cas. 198 : 37 C. 197 : 11 C.L.J. 250 : 14 C.W.N. 507. Unfortunately for the plaintiffs, however, the facts found by the Subordinate Judge do not support the conclusion that the processes, either in the suit, or in the execution proceedings were suppressed at the instance of the then plaintiff. The Subordinate Judge had found, so far as the processes in the suit are concerned, that they were not served. He does not find, nor has he stated any facts from which any inference could be drawn to the effect, that this non-service of processes in the suit was in any way attributable to the interference of the plaintiff in the rent suit. It may be conceded, as was laid down by their Lordships of the Judicial Committee in Radha Raman Shaha v. Pran Nath Roy 28 C. 475 (P.C.) : 5 C.W.N. 757 and. Khagendra Nath Mahata v. Pran Nath Roy 29 C. 395 : 29 I.A. 99 : 6 C.W.N. 473 that the mere circumstance that a defendant has failed to have an ex parte, decree set aside under Section 108, Code of Civil Procedure, or to have an execution sale set aside on the ground of material irregularity, does not debar him from seeking relief in a suit property framed for the purpose, on the ground that the suit itself was a fraudulent suit and that the proceedings therein were vitiated by fraud. But to enable the plaintiff to succeed in a suit so framed he must specially allege the circumstances of fraud and he must prove the fraud as laid in the plaint. Reference has been made on behalf of the respondents to the decision of Nemai Chand Kanji v. Deno Nath Kanji 2 C.W.N, 691 where certain circumstances were stated as indicia of fraud. That decision, however, is of no assistance to the respondents as the Subordinate Judge has not found all those circumstances to exist in the case before us. We must hold accordingly that the facts found by the Subordinate Judge do not constitute fraud and do not afford any basis for concellation of the ex parte decree in the rent suit.