R.N. SAHAY:- The extra-ordinary feature of the case is that the Subordinate Judge, Patna by the judgment under appeal ventured to declare the decree of the Calcutta High Court in Suit No. 158 .of 1978 [Chen's Carpentry Works (P) Ltd. Vs. M/s Satkar (P) Ltd.] to be nullity having been obtained by the practising fraud upon the Court.

2. The substantial facts are not in dispute and as the question raised in the appeal turns on jurisdiction of the Subordinate Judge to pronounce upon the validity of the decree of the superior Court it would not be necessary to state the facts in detail. Admittedly, the suit brought by the present appellant before the Calcutta High Court in its original jurisdiction was decreed ex-parte. The suit was filed by the appellant for a decree of Rs. 76,204.39p. for supplying furniture to the respondent.

3. After filing of the suit, steps were duly taken by M/s Khaitan & Company, Advocate on behalf of the appellant for lodging the writ of summons as well as service thereof. Original writ of summons were sent by the Sheriff's Office to the District Court, Patna for personal service on the respondent. Duplicate copy of the writ of summons were forwarded by the Sheriff's Office under registered post to the respondent and the same was duly served and/or delivered to the respondent on or about 11th April, 1972. The duplicate copy of the writ of summons were duly received by and/or on behalf of the respondent.

4. By letter dated 27th/28th June, 1978 M/s Khaitan & Co., Advocates duly drew the attention of the Registrar, Original side of Calcutta High Court that the respondent had been served with the said duplicate copy of the writ of summons and requested him to have the suit placed in the list for ex-parte hearing for the reasons mentioned therein.

5. On 10th July, 1978 the above mentioned suit appeared in the list of Hon'ble Justice Mrs. Manjula Bose as an undefended suit in as much as the affidavit of service to be filed on behalf of the Sheriff's department was not ready and Her Lordship was pleased to adjourn the matter till 2.00 P.M. Thereafter Amar Kumar Sengupta and employee of the Sheriff Calcutta filed an affidavit before 1.30 P.M. on the same date i.e. 10th July, 1978 stating that a duplicate copy of the writ of summons had been forwarded under registered cover to the defendant (respondent) on 5th April, 1978 and that the relative postal acknowledgment receipt was received in the Sheriff's office from the General Post Office, Calcutta on 17th April, 1978.

6. The said suit was taken up on the same day i.e. on 10th July, 1978 at 2.00 P.M. Hon'ble Justice Mrs. Manjula Bose after being satisfied about the service of the duplicate copy of writ of summons, proceeded to hear the suit. The Court passed the decree on the same day i.e. 10th July, 1978 for a sum of Rs. 76,204.39 in favour of the appellant.

7. By registered letter dated 9th December, 1978 M/s Khaitan & Co. called upon the judgment debtor to pay the decretal dues expressly referring to the said decree dated 10th July, 1978. By letter dated 2nd March, 1979 M/s Khaitan & Co. once again called upon the respondent judgment debtor to pay the decretal dues. The advocate of the appellant did not receive any reply from the judgment debtor-respondent.

8. Thereafter the appellant took steps for having the decree executed and an application was filed before the court of District Judge, Patna on or about 24th June, 1980 for execution of the aforesaid decree. The said execution petition was transferred to the court of Subordinate Judge-1, Patna. Notice of execution proceedings given to the respondent on 26th August, 1980 returned unserved on 26th August, 1980. The appellant was informed by his counsel that the respondent malafide refused to accept the notice issued by the court of Subordinate Judge, Patna.

9. On 9th January, 1981 the Subordinate Judge-1 Patna, passed order of attachment in respect of the properties of the respondent. The order of attachment, h