Pandit Chandi Prasad Misra vs Gobind Sahay

Roe, J.—The facts of this case being somewhat peculiar, I propose to set them out in detail.

On the 30th August 1909, Gobind Sahai brought a suit against Chandi Prasad in the Court of the Munsif of Jamui upon a mortgage. He obtained a decree on the 17th September 1910, the defendants having been absent throughout the proceedings. On the 1st October 1910 an application for execution was filed and on 6th March 1911 it was asserted that the property covered by the mortgage-deed was not within jurisdiction of the Munsif of Jamui. Then followed an application which is not upon the record by the decree-holder Gobind Sahai to forward the decree to Monghyr for execution. It was so forwarded and was put into execution by the Court at Monghyr and by proceedings of the Monghyr Court the defendant Chandi Prasad was made aware of the decree and put in an application under Order IX, Rule 13, to have the case re-heard. That application was finally dismissed for default on the 28th October 1911, the default being due to difficulty in taking steps for the substitution of the heirs of one of the deceased decree-holders. Upon this dismissal for default the mortgagor Chandi Prasad instituted a Suit No. 429 of 1913 in the Court of the Subordinate Judge of Monghyr the relief asked for being that the decree obtained upon the mortgage be declared to be void, firstly, for the reasons that the Munsif of Jamui had no jurisdiction to make it, and secondly, because the services of summons had been fraudulently suppressed. In this suit the two principal issues framed were, (1) whether the property mortgaged at the time of the institution of the suit was within the jurisdiction of the Munsif of Monghyr, and (2) whether the decrees were fraudulent or whether they were obtained after due services of summons and notice under the law?

The learned Subordinate Judge found on the facts that the property was outside the jurisdiction of the Jamui Court and also that no summons had ever been served. This judgment was recorded on the 28th August 1915. Armed therewith Gobind Sahai went to the Munsif of Jamui and asked him to return the plaint on the ground that the suit in his Court had been infructuous through this defect of jurisdiction. The Munsif of the Jamui Court thereupon recorded an order on the 28th of January 1916, returning the plaint. Gobind Sahai then took the plaint to the Court of the first Munsif of Monghyr. That Court questioned the right of the plaintiff Gobind Sahai to have the suit tried upon the original plaint. He finally decided that the plaint was dead and that no further proceedings could be maintained upon it. Against that order Gobind Sahai went to the District Judge and the District Judge decided that the Munsif of Jamui was right in returning the plaint to Gobind Sahai and that the plaint having been returned the Munsif of Monghyr was wrong in not disposing of the question raised in the plaint upon the merits. Against that decision the defendant Chandi Prasad appeals to this Court. The first objection taken is by the respondent to the effect that no appeal would lie to this Court. It is suggested that the proceedings were proceedings in regard to the return of a plaint and that, therefore, no second appeal is competent. With this view I am not in agreement. If the plaint was a live plaint then the learned Munsif of the first Court of Monghyr obviously disposed of it upon a preliminary point. His disposal of it on that preliminary point was a decree and the order made by the learned Judge was an order setting aside that decree. A second appeal would lie from the order of the District Judge either as one setting aside the decree or as one remanding the suit. Upon the merits of the appeal, I am of opinion that the appellant must succeed.

The contention on behalf of the respondent is this that where a decree is set aside by a Court upon a suit maintained for that relief, the decree only is set aside; the root of the suit in the plaint remains intact and must be dealt as intact. In support of this contention a case is quoted Sarbesh Chandra Basu v. Hari Dayal Singh 5 Ind. Cas. 236 ; 14 C.W.N. 451 at p. 458 ; 11 C.L.J. 346, in which a suit had been brought in good faith and finally decreed upon a compromise. It was afterwards ascertained that the compromise was liable to be set aside through a fraud or mistake and it was held that the original suit remains standing and should be disposed of on the merits. I cannot see that such a decision would affect the merits of the particular case before us. The only ground upon which one Court can set aside the decree of another Court is that through fraud the Court making the decree was prevented from ascertaining the true facts of the case. Without such proof of fraud there arises no jurisdiction to enter into the proceedings of another Court. In the case before us it has been definitely decided that the summonses were never served. It follows, therefore, that they must have been deliberately suppressed and a deliberate suppression of summonses is undoubtedly fraud. The case before the Subordinate Judge of Monghyr was clearly one to set aside the proceedings as a whole as Vitiated by fraud and not merely to set aside the result of the proceedings. It is impossible indeed in such instances of conspiracy to defeat justice to say when the fraud was commenced and to what extent the proceedings shall be operated upon to,rectify the effect of the fraud. The inference is that if immediately after filing his plaint, the plaintiff elects to suppress the summonses, he filed his plaint with the intention of suppressing the summonses. In any case I am strongly of opinion that when a suit is brought successfully to set aside the decree obtained by fraud the whole proceedings including the plaint are destroyed. The plaint filed by Gobind Sahai in the Court of the Munsif of Jamui on the 30th September 1909 has been destroyed by the decision of the Subordinate Judge of Monghyr. It is a dead plaint and no further proceedings can lie upon it. The fact that the Munsif of Jamui without giving the opposite party notice of his intention returned the plaint cannot restore it to life. The order of the learned Munsif of Monghyr, must be restored and the suit dismissed without prejudice to the plaintiff''s right to bring any other suit if within time on the same cause of action.

The appellant will have his costs throughout this litigation.

Chapman, J.

I agree.