MUKTAMALA DASI Vs. RAM CHANDRA DE

JUDGEMENT

(1.) This is an appeal by the Defendant No. 1 against a judgments and decree of the Subordinate Judge-reversing those of the Munsif. The plaintiff brought the suit to set aside a decree which was passed ex parte against him in Money Suit No. 200 of 1916 on the ground of fraud. In that case, the present plaintiff was the defendant. He was, it appears, served with proper summons; but on the date of hearing, he failed to appear in Court and the result was that a decree was passed ex parte against him. The plaintiff alleges that the claim for rent against him in the previous suit was entirely false and the decree was obtained against him on perjured evidence. On these allegations, he-went to trial. Several issues were framed in the trial Court of which the 5 issue was this: Is the rent decree obtained by the Defendant No. 1 against the plaintiff fraudulent and one liable to be set aside?

(2.) In a careful judgment, the Munsif considered all the reported cases on the question as to whether the plaintiff was entitled to maintain the present suit for setting aside the previous decree on the ground alleged and came to the conclusion that a fresh suit by the plaintiff for setting aside the prior decree on that ground was not maintainable. On the question of fact also, the Munsif came to a decision in favour of the defendant. On these findings, he dismissed the plaintiff's suit. The plaintiff appealed against that decree and the Subordinate Judge- started his findings by observing. The plaintiff can only succeed if he can prove that the defendant has practised fraud upon the Court in securing the decree complained of. To determine this, it is to be previously seen if the-claim in that rent suit was false and it was so known to the plaintiff of that suit.

(3.) Then the Subordinate Judge discussed the evidence and, on the facts, he came to a conclusion contrary to that of the Munsif and concluded his judgment in this way: Plaintiff's (it should be defendant s) claim in the rent suit is thus false and she must have known it to be false. The decree in that suit was evidently obtained by practising fraud on the Court. The decree in the rent suit, in my opinion, cannot stand.