An ex parte decree obtained by practicing fraud upon the court and by fraudulently suppressing the summonses in the suit can be set aside.

A.B.N.Sinha, J.

1. This appeal is by defendants 1 and 2. They alone contested the suit. The suit out of which this appeal arises was instituted by plaintiff-respondent No. 1 for a declaration that the ex parte decree passed in Title Suit No. 46 of 1954, against him was null and void and was not binding on him.

2. The trial Court has decreed the suit subject to certain directions regarding payment of Court-fees and costs. The plaintiff-respondent, it may be mentioned, has complied with those directions.

3. Appellant No. 1 Messrs. Jharkhand Mines & Industries Ltd, a company incorporated under the Indian Companies Act, 1913, having its registered office at 34, Grosvenor House, 21 Old Court House Street, Calcutta, instituted Title Suit No. 46 of 1954 in the court of the Subordinate Judge, Hazaribagh, impleading the present plaintiff-respondent No. 1 as defendant No. 2 and the pro forma defendants 2 to 5 (4?) as defendants 1, 3 and 4 respectively. The case of appellant No. 1 in that suit was that the plaintiff respondent and the pro forma defendant-respondent No. 2 held Rauta Colliery, fully described in the schedule of the plaint of that suit, unlawfully from the 2nd May, 1949 and had with the help of their nominees and men including pro forma respondents 3 and 4, worked the said colliery and had raised and sold coal and made illegal profits therefrom. On these allegations, a decree for khas possession of that colliery with mesne profits and/or compensation from the 1st July, 1951 upto the date of the filing of that suit, that is, up to the 22nd September, 1954, amounting to Rs. 15,000, or, such other sum or sums as may be found due, was prayed for. Appellant No. 2, Bokaro & Ramgarh Ltd., a joint stock company incorporated under the Indian Companies Act, 1882, having its registered office at No. 22, Chittaranjan Avenue, Calcutta, was added as a co-plaintiff in that suit on the 27th July, 1955. On the 28th July, 1955, appellant No. 1, the original plaintiff of that suit, filed a petition stating that it had no objection to the addition of appellant No. 2 as a co-plaintiff or to its substitution in its place.

On that very day, Title Suit No. 46 of 1954 was taken up for ex parte disposal and was decreed in full with costs. Thereafter, both the appellants took out delivery of possession through Court, but delivery of possession was purported to have been effected in favour of appellant No. 2 alone over the *suit properties on the 10th January, 1956. On the 8th December, 1958, a petition for ascertainment of mesne profits from the date of the institution of the suit till the recovery of possession was filed. The plaintiff-respondent No. 1 entered appearance in that proceeding on the 5th of December, 1959; his case being that he had come to know about the ex parte decree and the execution proceedings which followed only on the 3rd November, 1959 and thereafter he had made enquiries about the circumstances in which the ex parte decree was passed. His case is that fraud was practised by the appellants in obtaining the ex parte decree against him. Giving the details of the fraud, it was stated in the plaint that the plaintiff-respondent was not in possession of Rauta colliery, as alleged, that he was quite in dark about the filing and the progress of Title Suit No. 46 of 1954 on account of the fraudulent suppression of processes and wrong address supplied by the appellants, that there was motive in suppressing the processes of the Court and in keeping the plaintiff-respondent in dark about that suit and that no notice or copy of the amended plaint, after appellant No. 2 was added as a co-plaintiff, was even attempted to be served on the plaintiff-respondent. According to the plaintiff-respondent, the processes of the execution proceedings were also likewise fraudulently suppressed and wrong address was given. On these allegations and some others, the plaintiff-respondent instituted Title Suit No. 19 of 1960 on the 31st May, 1960 fo