Decided on March 06,1955



- (1.) This Second Appeal has been preferred by defendants 2, 3 and 4 who were brought on the party array as heirs of the 1st defendant who died during the pendency of the suit in the Trial Court. The plaintiffs sued for setting aside the decree and execution proceedings in O.S. No. 940 of 1109 which was obtained by the 1st defendant on the basis of a hypothecation bond executed by Mathevan Pillai Kesava Pillai, the husband of the 1st plaintiff and the father of plaintiffs 2 to 4. The 5th plaintiff is a vendee of the equity of redemption of item No. 5 from plaintiffs 1 to 4. The decree was sought to be set aside on the ground that it was obtained without service of summons on the judgment debtor and that it was for an inflated claim without giving credit to payments made by Kesava Pillai. The execution proceedings under which the 1st defendant had purchased the plaint properties and obtianed delivery were also sought to be set aside on the allegation that such proceedings were conducted secretly and fraudulently. According to the plaintiffs, they became aware of the suit only when defendants 2 and 3 to whom the 1st defendant has sold the equity of redemption of item No. 5 instituted O.S. No. 108 of 1121 against the 5th plaintiff for redemption of a mortgage under which he was in possession. The plaintiff deposited a sum of 2150 fanams which alone according to them was due to the 1st defendant. As item No. 5 was recovered in execution of the decree in O.S. No. 108 of 1121 the plaintiffs prayed that a decree be given to the 5th plaintiff to recover the said item with mesne profits. Defendants 1 to 3 jointly filed a written statement. The material averments were that the decree in O.S. No. 940 of 1109 was validly obtained, that the execution proceedings were properly conducted and that the amount sued for was really due to the 1st defendant. It was also pleaded that the suit was not maintainable, and that it was barred by res judicata and limitation. The courts below have concurrently decided the suit in favour of the plaintiffs, setting aside the decree and execution proceedings in O.S. No. 940 of 1109 and directing recovery of possession of item No.5 with mesne profits.
(2.) The main question for decision is whether the decree and execution proceedings sought to be set aside are vitiated by fraud. Ext. E is copy of the decree in O.S. No. 940 of 1109 and Ext. E1 is copy of the execution diary in the said case. It is convenient to consider the case regarding the decree and execution proceedings separately. The reasons which weighed with the lower courts in decreeing the suit are summarised in Para.14 of the Trial Courts judgment as follows:- The non inclusion of Ext. P amount in the plaint in Ext. E suit, the affixing of the proclamation to a tree in a property not in the possession and enjoyment of 5th plaintiff, the attestation of Ext. H notice by Lukose Esaya, a dependent of 1st defendant, the statement of Pw. 8 that he attested before the endorsement was written on Ext. E, the attestations by fictitious persons to the endorsement on Ext. G, the suspicious endorsement itself and the signature to Ext. G, are circumstances pointing towards fraud. The fact that Mathevan Pillai Kesava Pillai was ailing with cancer and was an in-patient in the General Hospital during that time, confirms the inference of fraud. The conduct of Mathevan Pillai Kesava Pillai shows that had he but known about Ext. E suit, and the subsequent proceedings he would not have remained passive but would have defended the suit, or made other arrangment to have the plaint items. In these circumstances, and in view of the conduct of 1st defendant subsequent to Ext. E decree, I have to infer that Ext. E decree was secured without notice to Kesava Pillai and fraudulently suppressing the summons issued in his name and that the sale and delivery proceedings also were conducted fraudulently that as such, the plaintiffs are entitled to question Ext. E decree and the execution proceedings and that they are liable to be set aside. As regards the question whether the decree was fraudulently obtained, the main point for consideration is whether there was fraudulent suppression of summons by the plaintiff in that suit so as to keep the defendant out of knowledge of the institution of the suit. The records relating to the Trial Court proceedings in that suit were destroyed before the suit was filed and the summons issued to Kesava Pillai is no longer available. It is therefore not possible to say whether the summons was personally served on him or not. All that can be gathered from Ext. E is that the decree was passed ex parte. Kesava Pillai was the 1st defendant in that suit, the 2nd defendant being one Adichan Yogan who was impleaded as a subsequent encumbrancer in that suit. There is absoloutely no material in this case to show that the decree was obtained by fraudulent suppression of summons from the defendants. The courts below expressed the opinion that Kesava Pillai would have contested the suit if he was aware of the same. This assumption is not supported by any fact. If the amount sued for was really due from Kesava Pillai there was no reason to suppose that he would have contested, if he had received notice of the suit. In view of the paucity of evidence regarding the service of summons, the main attempt of the plaintiffs was to show that the earlier suit was for an inflated claim without giving credit to payments made by Kesava Pillai. They set up certain payments in discharge of the amount due under the hypothecation bond. These are evidenced by Exts. B, C and D. These payments were not disputed and the learned Munsiff found that but for a payment not pleaded in the suit, the amount claimed in O.S. No. 940 of 1109 was correct. Reference has to be made to Ext. P in this connection. It is copy of a mortgage deed dated 5.8.1104 executed by Kesava Pillai in favour of one Yesayya for a sum of Fs. 700. During the evidence stage of the suit the plaintiffs advnaced a case that Ext. P was really taken by the 1st defendant and Yesayya was only a benamidar for him. It was therefore argued that a sum of 700 fanams also should have been given credit to when the 1st defendant instituted the suit. Though this was not a payment pleaded as an item of fraud in the plaint, the courts below considered it proper to adjudicate on this contention. The courts below were not justified in entering a finding on this point or basing the decree on such finding. It is an elementary rule that allegations, however strong be the language in which the same are couched, will not entitle the plaintiff to get any releif. It was not stated in the plaint or in the replication that 700 fanams out of the amount due under the hypothecation bond had been discharged by the execution of Ext. P or that the mortgagee was only a benamidar of the 1st defendant. The plea of benami is also one to be set up and proved by the plaintiff. In these circumstances the courts were not justified in upholding this contention. Even if the plea had been properly raised, the evidence would not have justified the conclusion which was based on a vague statement by some of the witnesses that Yesayya was a dependant of the 1st defendant and that the fact that he figured as attesting witness in one of the notices served on Kesava Pillai in execution. Apart from all these aspects the falsity of the claim on which a decree was obtained is not a valid ground for setting aside the decree. The finding of the Trial Court is that the only sum not given credit to by the 1st defendant is the amount under Ext. P. It mut therefore be found that the amount sued for in O.S. No. 940/1109 was validly due to the 1st defendant. The grounds relied on for setting aside the decree are unsustainable. It was urged on behalf of the plaintiffs that the courts below having come to a concurrent finding that the decree was vitiated by fraud, it is not open for this court to interfere with the same. I am unable to accept this argument because the question whether a decree is vitiated by fraud is not a pure question of fact on which concurrent findings would be conclusive.
(3.) The next question is whether the execution proceedings are vitiated by fraud. Except for a vague allegation in the plaint that the proceedings in execution were conducted secretly and fraudulently there was no specific averment that any notice in execution was fraudulently suppressed or that any step preceding the same was not conducted in accordance with law. Learned counsel for the respondents sought to support the decree by raising a contention that the execution proceedings were void. This argument was sought to be supported by Ext. Y, a copy of the notice sent to Kesava Pillai under O.21 R.22 of the Code of Civil Procedure. Ext. Y was produced in the lower appellate court. It is seen from the records that the learned Judge has not passed any order admitting the same in evidence although it was marked as Ext. Y. No reliance was placed on it either. If Ext. Y has to be deemed as admitted in evidence, it has to be observed that the learned Judge has not complied with the provisions of law regarding admission of evidence in the appellate court. The only reason alleged by the plaintiffs for producing this document in the appellate court was that they were not advised by counsel that the document was useful for proving their case. This is hardly a justifiable ground for the receiption of evidence in appeal. Even apart from this, the appellate court is bound to record reasons for admitting additional evidence. As pointed out earlier, there is no such order on the application for admission to Ext. Y in evidence. It may also be stated that the plaintiffs had no case that the execution proceedings were void on account of any defect in the service of notice under O.21 R.22. The alleged defect was that the court had not made a declaration that the service of the notice was proper. The execution diary in that case shows that the court accepted the same as proper and proceeded to take further steps in execution. Ext. Y, even if it had been produced in the Trial Court, would not therefore have supported the arguments regarding the void nature of the proceedings in execution. It has been decided in several reported decisions that a declaration regarding service of the notice may be implied and that such an implied declaration is sufficient compliance with law. Vide AIR 1940 Mad. 213 , AIR 1943 Mad. 55 , AIR 1950 Assam 6, AIR 1932 Oudh 326 and AIR 1934 Lahore 985. Another ground urged in support of the same argument is that the proclamation of sale was not affixed on item No. 5. This ground was also not taken in the pleadings. R.67(1) of O.21 provides that every proclamation of sale should be made and published as nearly as may be in the manner prescribed by R.54 sub-r. (2) relating to attachment of immovable properties. What is provided in R.54(2) is that the order should be proclaimed at some place on or adjacent to such property by beat of drum or by customary mode. There is no evidence in this case regarding the location of the properties sold in execution or as to whether the place where the proclamation of sale was affixed was or was not adjacent to other properties. In the absence of pleadings on the point, the plaintiffs are not entitled to rely on this fact. My attention was drawn to the decision of a Full Bench of this court in Mariamma Mathew v. Ittoop Poulo ( 1952 KLT 116 ). The question that arose in that case was whether an alienation made by the judgment debtor was after the property was attached. It was found by the Trial Court in that case that the attachment order was not affixed on the property alienated. After referring to several reported decisions it was held by the Full Bench: Regard being had to the purpose with which the provision that in causing an attachment of immovable property a copy of the order of attachment should be affixed on the property sought to be attached is embodied into the Code we are not inclined to differ from the view taken in these cases that when several properties are attached a copy of the order should be affixed on each separate property. In the case before us the properties situate in one Muri were treated as one lot and a copy of the order was affixed on one item comprised in each lot. We cannot agree that that would satisfy the requirements of the provision referred to. As the order of attachment was not affixed on the property alienated, the alienation was upheld as one not contrary to the attachment. This decision cannot support the proposition that the omission to comply with the requirements under O.21 R.54 would render the sale void. The decisions reported in ILR 47 Mad. 525, 18 Cal. 422 (FB), AIR 1938 Cal. 699 , AIR 1942 Cal. 275 , AIR 1923 Lah. 671 lay down that in such a case the sale would not be void. Even if there were material irregularities in publishing and conducting the sale the remedy of the judgment debtor was to apply for setting aside the sale within thirty days of the same.;

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