In a suit to set aside an ex parte decree on the ground of fraud, the onus of proving non-service of summons and fraud initially lies on the plaintiffs, but it may shift to the defendant if the plaintiffs adduce sufficient evidence to support their case.

Raj Kishore Prasad, J.

1. This appeal, by defendant 1, which arises out of a suit for setting aside an ex parte decree, on the ground, of fraud, is from a judgment of reversal of the learned Additional Subordinate Judge, Chapra, who reversed the judgment of the first court, and decreed the plaintiffs suit.

2. The facts are these: Defendant 1, the appellant as plaintiff brought a title suit, Title Suit No. 23 of 1952 in the court of the 3rd Munsif at Chapra against the plaintiffs respondents.

3. In that suit, the appellant claimed a declaration that the respondents right to redeem the zerpeshgi which was the subject matter of that suit, had been extinguished, because of the expiry of the statutory period of 60 years, and therefore, he also asked for confirmation of his possession.

4. The present plaintiffs were defendants 1 to 3 to the previous suit. The present plaintiff 3, then defendant 3, however died during the pendency of the present suit, and her name was expunged. The previous suit was decreed ex parte on the 11th September, 1952, against the present plaintiffs.

5. The plaintiffs therefore, brought the present suit for setting aside the aforesaid ex parte decree on the ground that the then plaintiff, now defendant 1 appellant fraudulently got a false service report of summons on the plaintiffs filed in court, in collusion with the court peon, and as such, they could have no knowledge of the suit and fraudulently, thereafter, obtained an ex parte decree against them. The plaintiffs, here, further alleged that the claim of the present defendant in that suit was false as there was no zerpeshgi and he was never in possession as such.

6. The suit was contested by defendant lf who alleged that his claim in his former suit was true and that the summons was duly served on the present plaintiffs but they, in spite of having knowledge of the suit, did not choose to appear and allowed an ex parte decree to be passed against them. He, therefore, alleged that there was no fraud in obtaining the ex parte decree and as such, it cannot be set aside.

7. The trial Judge, who heard the suit in the first instance, held that the present plaintiffs had failed to prove non-service of summons in the former suit, and, that they had also failed to prove, any sort of fraud. He, therefore, did not go into the question of falsity or otherwise of the appellants claim in the previous suit. The plaintiffs suit, accordingly, was dismissed.

8. The plaintiffs, thereafter, took the matter in appeal, which was heard and decided by the learned Additional Subordinate Judge. He on a consideration of the evidence, held that the plaintiffs had succeeded in proving that summons was not served on them, and that a false service of summons was obtained by perpetrating fraud by defendant 1, the appellant. He further held that the appellant, who was the plaintiff in the previous suit, had strong motive to commit fraud and thereby to obtain a false service of summons, whereby to keep back the plaintiffs from having any knowledge about the suit, and, to deprive them of any opportunity of setting up their defence, in order to obtain an ex parte decree, because he observed that, if the Revisional Survey entry was correct, 60 years limitation under Article 148 of the Limitation Act had not yet expired till before the suit, and, as such, the suit brought in 1952, was premature. He therefore, in disagreement with the trial court, decreed the plaintiffs suit, and, set aside the ex parte decree.

9. On second appeal to this Court, the finding of the court of appeal below, that there was no service of summons on the plaintiffs and that there was fraudulent motive for suppressing the service of the summons on them, has been attacked by Mt. Kailash Ray, who appeared for the appellant, to quote his own words on the following grounds, (11 that the initial onus to prove service, even assuming that it was on the defendants, was discharged by them by the examination of the peo