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Second Appeal No. 362 of 1953, decided on 26th July 1957.

O. IX, r. 13‑Ex parte decree obtained by fraud, suit for setting aside‑Mere fact that claim was false or without any cause of action will not entitle defendant to set aside such decree.

An ex‑parte decree cannot be re‑opened in a later action brought to set aside on the ground of fraud simply because the claim decreed ex parte was false. The mere fact that the claim was false or without any cause of action will not entitle a defendant to set aside the decree obtained in the suit. The only ground on which the reversal of the ex parte decree in the previous suit can be successfully prayed for in a suit for setting aside that decree is that the plaintiff was prevented by the decree‑holder in the previous suit from placing his case before the Court. In other words, he will have to prove that the notice of the previous suit was not served on him, and that this non service was due to the fraud of the defendant in the previous suit.

Durgagati Banerjee and others v. Taharuliah Mia 44 C W N 849 ; Kunjabehari Chakravarty v. Krishnadhone Majumdar 44 C W N 912 and Kumar Sarat Kumar Roy v. Dharmadas Bhattacharjee 42 C W N 375 ref.

S. M. Abbas for B. K. De for Appellant.

M. A. Aziz for Respondents.

This appeal is on behalf of the defendant, and arises out of a suit for setting aside an ex parte decree obtained against the plaintiffs by the defendant‑appellant. The facts, shortly stated, are as follows : The defendant obtained a decree in Rent Suit No. 964 of 1948 in the Court of the 2nd Munsif at Narayanganj against the plaintiffs, and the plaintiffs, thereafter, deposited the decretal amount in Court to avoid the sale of their tenancy lands. This decree in the Rent Suit, the plaintiff's allege, was obtained by the defendant without service of notice on them, and the amount claimed in the previous Rent Suit was not due from the plaintiffs in view of the fact that the defendant's husband took a loan of Rs. 1,500 from the predecessors of the plaintiffs on condition that the rent of the holding would be satisfied from the interest that would accrue on that amount. The defendant contended that the summonses in the rent suit were served, and that whatever her husband might or might not have done, she as the holder of the superior interest was entitled to realise rent from them. It was also pleaded by the defendant that the loan of Rs. 1,500 was repaid.

2. Both the Courts below have decreed the suit mainly on the finding that the claim of the defendant in the Rent Suit was unjust and improper. They also recorded a finding that the decree of the rent suit was obtained by fraudulent suppression of processes by the defendant, but this latter finding is arrived at by an inference from the first finding that the defendant's claim in the rent suit was unjust. The Court of Appeal below clearly says that there is no direct evidence of fraudulent suppression of processes nor is there any independent oral evidence of such fraud or suppression of the same. In view of this finding about fraud and suppression of processes, I do not see how the suit could be decreed by the Court of Appeal below. The principle of law is now well‑established that an ex parte decree cannot be re‑opened in a later action brought to set it aside on the ground of fraud simply because the claim decreed ex parte was false. The mere fact that the claim was false or without any cause of action will not entitle a defendant to set aside the decree obtained in the suit. The only ground on which the reversal of the ex‑parte decree in the previous suit can be successfully prayed for in a suit for setting aside that decree is that the plaintiff was prevented by the fraud of the decree‑holder in the previous suit from placing his case before the Court. In other words, he will have to prove that the notice of the previous suit was not served on him, and this non‑service was due to the fraud of the defendant in the previous suit. The cases of Durgagati Banerjee and others v. Taharuliah Mia (44 C W N 849) ; Kunjabehari Chakravarty v. Krishnadhone Majumdar (44 C W N 912) and Kumar Sarat Kumar Roy v. Dharmadas Bhattacharjee (42 C W N 375) may be looked into in this connection. In the case before me, the identical thing which has been condemned in the decisions referred to above has been done. The Courts below have gone into the merits of the plaintiffs' case in Rent Suit No. 964 of 1948, and therefrom have inferred that the summonses were fraudulently suppressed. I would have sent back the case to the trial Court for rehearing had there been any evidence on the record to prove the fraudulent suppression of the processes, but, as the Court of Appear below recorded that there was no such evidence or at least no reliable evidence, it will serve no purpose in sending back the case for re‑hearing.

3. The result, therefore, is that this appeal is allowed, and the judgments and decrees of the Courts below are set aside, and the plaintiffs' suit is dismissed; but, in view of the facts and circumstances of the case, I direct that the parties will bear their own costs all throughout.

K. B. A. Appeal allowed.

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