Mere non-service of summons is not a ground for setting aside an ex parte decree. A suit to set aside an ex parte decree can only be maintained if there is a fraudulent suppression of the summons.

( 1 ) THIS is an appeal from a decree dismissing the plaintiff's suit on the preliminary ground that the suit is not maintainable.

( 2 ) THE first defendant herein, East Bengal Commercial Bank Ltd. , obtained a decree in this Court against the plaintiff and the second defendant, Oriental Trading Syndicate, a partnership firm, on an overdraft account on 20-7-1948. The suit was filed on 21-2-1948 and was decreed ex parte. The plaintiff Atul Chandra Sarkar did not make an application for setting aside the said decree or prefer an appeal theretrom. He tiled this suit on 21-1-1949, claiming a declaration that the said decree of 20-7-1948 was void and of no effect and asked for setting aside the same. His allegations in the plaint are: (a) On 16-3-1946 an agreement was entered into by and between the Bank on the one hand and the plaintiff and the second defendant (hereinafter referred to as the firm) on the other whereby the Bank was to lend to the firm the sum of Rs. 5,000/-against the securities of bills drawn or to be drawn by the firm, such loan to be guaranteed by the plaintiff. (b)In pursuance of this agreement various sums of money were advanced by the Bank to the firm and bills deposited by the firm were collected by the Bank and appropriated towards its dues. (c) On 31-5-1946 the plaintiff revoked the said guarantee by notice in writing. (d) On the last mentioned date a sum not exceeding Rs. 3,581/6/9p was due by the firm to the bank and a number of bills drawn by the firm and exceeding the above mentioned sum remained with the bank for collection and appropriation. (e) Thereafter the firm deposited various bills with the bank which were duly collected by the bank thus wiping out the liability of the firm. In November, 1948 the bank purported to execute the decree made on 20-7-1948 and caused to be attached various properties belonging to the plaintiff. (f) The writ of summons was never served upon the plaintiff who had no opportunity to defend the suit filed by the bank-"and the said decree was obtained ex parte fraudulently by suppression of the summons and by perpetrating a fraud upon the Court by suppression of material facts, in particular by suppression of the fact as to the revocation of the guarantee by the plaintiff as aforesaid".

( 3 ) BY the written statement filed herein the bank denied the allegations made in the plaint and contended that the writ of summons in the former suit was duly served by affixation after three unsuccessful attempts and the plaintiff had knowledge of the same at all material times. The bank also described the story of revocation of the guarantee as untrue.

( 4 ) THE suit came on for hearing before S. R. Das Gupta, J. on 13-6-1956. It appears that no issues were settled and the suit was dismissed on the preliminary ground mentioned above. By his judgment the learned Judge held that"it was well established that a suit to set aside en ex parte decree was only maintainable if there was a fraudulent suppression of the summons and that mere non-service of the summons was not a ground on which such a suit could be maintained". He relied on the judgment of Roy, J. in Tarunan, ganath Banerjee v. Premnarayanlal Raizada, ILR 60 Cal 98: (AIR 1933 Cal 274 ). The learned Judge observed that as the plaintiff had given no particulars of the fraud, namely, fraudulent suppression of the summons, the suit must fail on the averment made in the plaint. In effect, the learned Judge came to the conclusion that a mere allegation that there had been fraudulent suppression of the summons without any other particulars would not be enough to maintain a suit.

( 5 ) THE grounds of appeal taken are, inter alia: (1) That sufficient particulars of fraud had been given in the plaint and (2) that the learned Judge should have given the plaintiff an opportunity to substantiate the averment made therein by evidence. It will be noticed that there is no allegation that the plaintiff had offered to give p