JUDGMENT

Dunkley, J - In suit No. 76 of 1931 of the Sub divisional Court of Myaungmya, the appellants Maung Su Ya and Ma Shwe Hmin brought a mortgage suit on three mortgages executed by respondents 2 and 3, Maung Bo Kyi and Ma Pwa Yin. Respondents 1, N.N.K.P.L. Chettyar firm, ware joined as defendants as being puisne mortgagees of some of the mortgaged properties. Respondents 1, did not appear, and the suit was heard ex parte as against them. At first Bo Kyi and Ma Pwa Yin filed written statements pleading that the mortgages had been discharged by payment of the sum of Rs. 3,500, but subsequently still in the absence of respondents 1, the two appellants and respondents 2 and 3 filed a joint petition compromising the suit and asking that a decree on the mortgages should be passed for the amount claimed without costs. A mortgage decree was consequently passed, not only against Bo Kyi and Ma Pwa Yin, but also against respondents 1, N.N.K.P.L. Chettyar firm. Subsequently, in suit No. 85 of 1932 of the Sub-divisional Court of Myaungmya, respondents brought a suit against the two appellants and also against respondents 2 and 3, Bo Kyi and Ma Pwa Yin, for a declaration that the ex parte decree obtained against them in suit No. 76 of 1931 was null and void as having been obtained by fraud and that the decree should be set aside. This suit was not contested by respondents 2 and 3, but has been contested by the appellants. Concurrent decrees have been passed against the appellants both in the Sub. divisional Court and also on first appeal to the District Court of Myaungmya, and consequently, the present appeal lies solely under Section 100, Civil P.C.

2. Now, the fraud on which the suit of respondents 1 was based was of two kinds. They first of all alleged that they, had not been duly served with summons in suit No. 76 of 1931, and that the ex parte decree had been obtain, ed against them by reason of fraud and collusion between the appellants and the process-server; and, secondly, that even if they had been duly served with summons, the consent decree in suit No. 76 of 1931, against them was obtained by fraud and collusion between the appellants and Maung Bo Kyi and Ma Pwa Yin by suppressing from the Court the fact that the three mortgages had been discharged by payment prior to the suit being brought thereon. As regards the first alleged act of fraud, this must undoubtedly be decided against respondents 1. There are concurrent findings of fact that respondents were duly served with summons in suit No. 76 of 1931, and with those concurrent findings I do not propose to differ. They are supported by evidence and therefore are final so far as this second appeal is concerned.

3. In regard to the second alleged fact of fraud, there is again a concurrent finding of fact by the Sub-divisional Court and the District Court that the mortgages on which suit No. 76 of 1931 was brought were duly discharged by payment in or about the year 1926 or 1927, and that the appellants, by fraud and collusion with the respondents, Bo Kyi and Ma Pwa Yin, had persuaded the latter to withdraw their plea of payment, made in their written statements, and to consent to a mortgage decree being passed against them and the absent respondents 1, and that this had b9en done with the intention and object of defrauding respondents 1. This again is a question of fact which cannot now be contested by the appellants. On behalf of the appellants it is argued that the fraud alleged, viz., that the consent decree was obtained by fraud and collusion between the appellants and respondents 2 and 3, is not a fraud which is extrinsic to the previous suit, but was intrinsic within that suit, and that therefore a suit to set aside the decree in suit No. 76 of 1931, on the ground of this fraud is not maintainable, and as authority for this proposition the case of K.E. Musthan v. Mohendra Nath Sing 1924 Rang. 119, is quoted. No doubt the decision in that case correctly lays down the law vi