Modi, J.—This is a civil regular second appeal by defendant Ajablal against the judgment and decree of the Civil Judge, Banswara, in a suit for setting aside the decree which was passed against the plaintiff in suit No. 37 of 1956. 2. The material facts leading up to this appeal are briefly these : The defendant-appellant filed suit No.37 of 1956 against the plaintiff-respondent for recovery of a certain amount of money. This suit was decreed against the latter. The plaintiff then filed the suit out of which this appeal arises, with the prayer that decree be declared to be in-operative against him. The allegation of the plaintiff was that the decree had been obtained by the defendant-appellant by fraud and this fraud was said to have subsisted in the fact that while the plaintiff was in an unsound mental condition at the time the service of the summons was said to have been effected on him, the defendant-appellant had represented to the court that, although the plaintiff had earlier been insane, he had recovered his mental faculties and therefore, the suit could proceed against him. It was under these circumstances that that suit came to be decreed against the plaintiff-respondent ex parte, and the present suit has been brought for a declaration that that decree is not binding on the plaintiff because the plaintiff continued to be insane at the relevant time. The suit was resisted by the defendant. Both courts below have held on evidence which was properly before them that the plaintiff-respondent was not in proper senses at the time the service of the summons was alleged to have been effected on him and, therefore, the proceedings which were taken against him in that suit without a proper guardian having been appointed to represent and safe-guard his interests were a nullity vide O. 32 r.15 of the Civil Procedure Code, and, in this view of the matter, the plaintiffs suit has been decreed by both courts below. Aggrieved by this decision, the defendant has now come up in second appeal to this court.

3. In this appeal, learned counsel for the appellant frankly conceded and, in my opinion quite rightly, that the finding of the courts below that the defendant-appellant had obtained the decree against the plaintiff-respondent by fraud was a finding of fact, and, it was, therefore, not open to him to re-agitate this point in the present appeal. The only contention that he has then raised is that, even so, he is entitled to have it clarified that the original suit in which the decree was obtained should be allowed to be revived from the stage prior to that of the service of the summons on the plaintiff-respondent. This point does not appear to have been taken before the courts below when the case was argued before them and, therefore, they were not called upon to give any decision on it. It may be stated however, that I have thought it fit and proper that this point should be allowed to be raised in all the circumstances of the case and in the interest of avoiding multiplicity of proceedings, as it is bound to be raised even if this court leaves it undecided at this stage. Nothing, in my opinion, therefore, will be gained by omitting to decide this point at the present stage, and it is best that it is decided here and now. The question, therefore, that arises for decision in this appeal is whether the defendant-appellant is entitled to have his suit revived on the decree obtained by him therein having been set aside. A like question arose before a Full Bench of the Patna High Court in Nirsan Singh vs. Kishuni Singh(l). The decision of the Full Bench was that as to whether when an exparte decree was set aside in a subsequent suit, the original suit, in which that decree was obtained was revived or not depended upon the pleadings, the issues and the actual decision in the subsequent suit. Thus where the principal issue in the subsequent suit is that the exparte decree had been obtained by the defendant by fraud, two types of cases may a

Click Here to Read the rest of this document