KURE Vs. JHINGURIA

JUDGEMENT

(1.) This appeal has arisen out of a suit brought by the plaintiff-respondent for the purpose of having a decree obtained against him in the Small Cause Court at Agra set aside, on the ground that it had been procured by fraud. The plaintiff also prayed that certain property of his which had been attached in execution of the decree should be released.

(2.) The facts are as follows: In the year 1913 the present defendant sued the present plaintiff on a promissory note alleged to have been executed in November 1912 to secure a loan of Rs. 500. The suit was not defended. The officer deputed to serve the summons on the defendant repotted that he had tendered the summons to him, the defendant declined to receive it and the summons was then affixed to the door of the defendant s house. The Judge of; the Small Cause Court being satisfied with the service passed an ex parte decree on the 24th April 1013. Execution was taken out in August of that year and the judgment-debtor then applied under Order IX, Rule 13, to have the ex parte decree set aside. It is stated in the plaint that this application was refused on the ground that the security required by Section 17 of the Provincial Small Cause Courts Act was not furnished, but it appears that the merits of the application were considered, for in his order of the 17th September 1913 refusing the application the Judge of the Small Cause Court observed that the applicant had failed to discharge the burden of proving that there was any sufficient cause for his non attendance in Court when the ex parte decree was given against him.

(3.) Having failed to get the case re-heard, the defendant Jhinguria has now brought this suit to have the decree set aside. His case as set out in the plaint was that the promissory note upon which the decree was obtained was a forgery. It was alleged in the second paragraph of the plaint that the suit had been instituted fraudulently and that he (plaintiff) had been prevented by the present defendant s fraud from receiving the summons so as to enable him to file his defence. He claimed, therefore, that as the promissory note was a false document and as all the proceedings in the suit were fraudulent, he was entitled to have a declaration that the decree was of no effect and to have his property released from attachment.