RAMRATAN LAL Vs. BHURI BEGUM

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiffs sought to set aside a decree, which the defenantshad obtained under Section 90 of the Transfer of Property Act, on the allegation that the same was obtained by fraud. The material facts are practically undisputed. The defendants or their representatives brought a suit upon foot of a mortgage dated the 25th of October 1893 and obtained a decree. They had asked in that suit not only for a decree for sale of the mortgaged property but also for a personal decree. This latter part of their claim was disallowed. Some years afterwards the decree-holders applied to the Court for a decree under Section 90 of the Transfer of Property Act. Notice of the application was duly served on all the judgment-debtors.

(2.) They did not appear and the Court granted the decree, but limited it to the assets of the deceased mortgagor. This is the decree which it is sought in the present suit to set aside. Later on in execution of this decree a house of the judgment-debtors was attached. The male judgment-debtors objected that the house could not be sold on the ground that they were agriculturists. This objection was overruled. There was an appeal by the judgment-debtors which was dismissed. Both the Courts below have granted the plaintiffs a decree, setting aside the decree obtained by the defendants under Section 90 of the Transfer of Property Act. The judgment of the Court of first instance is a little misleading unless one reads it as a whole, when carefully considered it is clear that the defendants practised no fraud on the plaintiffs to the present suit in respect of the service of notice of the application for the decree under Section 90.

(3.) The plaintiffs are pardanashin ladies, and it is quite impossible for any litigant to serve process of the Court in any way which would violate the pardah of such ladies. When the Court of first instance says that these ladies knew nothing about the decree under Section 90, it does not mean that the defendants in the present suit were in any way responsible for their want of knowledge. The ladies were duly served with the notice, so also were the male members of the family. No objection was taken to the granting of the decree under Section 90 and no application was ever made to set it aside. The male members who were equally interested with the ladies in opposing the decree, evidently thought that there would be no chance of success. We find, however, when the house was attached in execution of that decree, they opposed the sale on the ground that they were agriculturists.