A suit for setting aside an ex parte decree on the ground of fraud is maintainable if the fraud alleged attacks the suit itself and not merely the regularity or sufficiency of the service or the proceedings.

( 1 ) A short question arises in this appeal.

( 2 ) THE appellant was the defendant in a suit for setting aside an ex parte mortgage decree on the ground of fraud and non-service of summons. The plaintiff had previously applied unsuccessfully to have the decree set aside under Order 9, Rule 13 of the Code of Civil Procedure. The only point is whether the present suit is maintainable and whether the findings, on which the learned Subordinate Judge has answered that question in the affirmative and granted the plaintiff a decree, setting aside the previous ex parte decree and reviving the original suit, are sufficient in law for the said purpose.

( 3 ) THE ex parte decree which was sought to be set aside in the present suit was passed in a mortgage suit (T. S. No. 80 of 1945), brought by the present appellant as plaintiff against the present respondent as defendant. The preliminary decree was passed ex parte on April 27, 1945, and It was made final in March, 1946. On September 17, 1946, the present plaintiff who was the defendant in the mortgage suit applied under Order 9, Rule 13 of the Code of Civil Procedure ifi Miscellaneous Case No. 298 of 1946 to have the said decree set aside upon the ground of non-service of summons. His application was rejected up to the appellate court upon the finding that the summons had been duly served. He then filed the present suit on March 1, 1948, alleging, inter alia, that the plaintiff's claim in the mortgage suit was false and the ex parte decree was obtained by perjured evidence and suppression and non-service of summons. The learned Munsif rejected all the said allegations and dismissed the suit. On appeal the learned Subordinate Judge has come to a different conclusion and decreed the suit upon the finding that the summons was not served upon the present plaintiff in the mortgage suit and it was fraudulently suppressed. He has not, however, come to any specific finding on the other questions, namely, whether the mortgage claim was false or whether the suit was decreed on perjured evidence. The propriety of this appellate decision is now challenged by the present defendant appellant and the only point which requires consideration is whether the suit is maintainable and whether the findings of the learned Subordinate Judge are sufficient for passing a decree in the present plaintiff's favour.

( 4 ) IT is settled law that where the fraud alleged is of such kind as to attack the suit itself and not merely the regularity or sufficiency of the service or the proceedings, a suit by a person on whom no summons was served, for setting aside the ex parte decree is maintainable, it is also settled law that mere falsity of claim and/or perjured evidence if non-service of summons be not proved will not support the action. The plaintiff, therefore, in a suit for setting aside an ex parte decree on the ground of fraud when he was unsuccessful in his application for setting aside the ex parte decree on the ground of non-service of summons must prove some kind of fraud, which, affects the suit itself and not merely the regularity or sufficiency of the service or the proceedings, in addition to non-service of summons in order to obtain a decree. Falsity of claim would, amount to such fraud, though, possibly, mere perjured evidence, unless the claim was false, would not. In order, therefore, that the plaintiff may succeed in the present suit, it is necessary to establish that the mortgage claim was false. On that point the learned Munsif found against the plaintiff. The learned Subordinate Judge has not recorded any different conclusion. He has reversed the learned Munsiff's decision, dismissing the suit, and decreed the suit simply upon the finding that no summons was served upon the plaintiff in the mortgage suit and that it was fraudulently suppressed. That is not supportable in law and the learned Subordinate Judge's decision must, therefore, be set aside.

( 5 ) THE appellant has