RAMKESHWAR SINGH Vs. KESHO PRASAD SINGH

JUDGEMENT

(1.) Two brothers Rameshwar Nath Singh and Ramkeshwar Singh had incurred liability for costs in a Collectorate partition for which a certificate was issued under the Public Demands Recovery Act. Their property was duly brought to sale and objections to the validity of the sale were overruled.

(2.) The two brothers then instituted separate suits against the purchasers of the property alleging that notice had not been served under Section 7, Public Demands Recovery Act, and alleging also fraud on the part of the auction purchasers. The suit of the brother Rameshwar Nath was heard first. It was dismissed in the trial Court and an appeal to the District Judge and a second appeal to the High Court both failed. We are concerned with the suit of Ramkeshwar Singh. This man alleged that notice under Section 7, Public Demands Recovery Act, had not been served and that the proceedings under the Act were vitiated by the fact that he had been kept out of knowledge of them by the fraud of his brother Rameshwar Nath in collusion with the ultimate auction-purchasers. The Munsif found that notice had been served and that fraud had not been proved and he dismissed the suit. His decision was reversed on appeal by the Subordinate Judge. Regarding the notice under Section 7, Public Demands Recovery Act, the Subordinate Judge found that it had not been validly served because the service report of the peon did not contain particulars which the Subordinate Judge considered were required by the rules made under the Public Demands Recovery Act. The Subordinate Judge found that collusion between Rameshwar Nath and the auction purchasers had not been proved and that it had not been proved that Rameshwar Nath profited in any way by the proceedings in the certificate case; but the service of the sale proclamation under Rule 25 of the Statutory Rules had been accepted, by Rameshwar Nath on behalf of both the certificate debtors, and the Subordinate Judge held that Rameshwar Nath had committed fraud by omitting to inform his brother Ramkeshwar Singh of the service of the sale proclamation. The decision of the Subordinate Judge was set aside on second appeal in the High Court.

(3.) The learned Judge of this Court held that as Ramkeshwar Singh was a defendant in Rameshwar's suit, the findings of fact in that suit amounted to res judicate binding on Ramkeshwar Singh, so that it was not open to the Subordinate Judge to find that notice under Section 7 of the Act had not been served. The learned Judge also pointed out that the plaintiff Ramkeshwar had failed to substantiate every allegation of fraud which he had made and he held that the residuum which remained, the mere failure to inform Ramkeshwar Singh of the service of the sale proclamation, was not sufficient to support a finding that the sale had been vitiated by fraud.