MT FAIYAZI BEGAM Vs. SABIR HOSAIN

JUDGEMENT

(1.) This is a plaintiff's appeal in a suit for a declaration that a certain decree under Order 34, Rule 6 was not binding on the plaintiff as having been obtained by fraud.

(2.) The circumstances must be briefly set out. A father executed a mortgage of certain property. Subsequent to his death his four sons executed another mortgage in favour of a different mortgagee and covering part of the same property and partly an additional property. The father mortgagor left behind him besides sons certain daughters. The subsequent mortgages finally paid off the prior mortgagee and then brought a suit on both mortgages. To that suit he only made the sons defendants. In the event he wanted a decree under Order 34. Rule 6, and he applied for and obtained such a decree. He, however, applied for and obtained this decree not only against the four sons, who had been defendants in the suit, but against the two daughters. It has been found as a fact that the two daughters were duly served, though they deny service of the summons. In any case, they put no objection, and the decree was passed. It is to set that decree aside that one of the daughters brought the present suit making the other daughter a pro-forma defendant.

(3.) The suit was brought on the allegation that the decree had been obtained by fraud. It may or may not have been so obtained, but it appears unnecessary to enter into that. The decree under Rule 6 was, as made, manifestly beyond the jurisdiction of the Court. It could only have been made against the defendants in the original suit. The trial Court decreed the plaintiff's claim, but the lower appellate Court allowed the appeal and dismissed the plaintiff's suit relying on the decision in Ramratan Lal V/s. Bhuri Begam [1916] 38 All. 7. That case is, however, clearly distinguishable. In that case the plaintiff, who desired to get the decree set aside on the ground that it had been obtained by fraud, was one or more of the original defendants-judgment-debtors in the suit. Allowing the appeal, I set aside the decree of the lower appellate Court and restore that of the Court of first instance. The appellant will have his costs.