Padma Khastgir, J. - (1.) This suit has been filed by Chiranjilal Agarwalla and Puran Chandra Ram against the defendants Jai Hind Investments and Industries Private Ltd. and Krishna Kumar Bagla, inter alia, for a declaration that the ex parte decree obtained by the defendant No. 1 on 27th June, 1966 passed in Suit No. 1271 of 1964 is fraudulent and void and the same is not executable against the defendants, the decree is liable to be set aside, for removal of attachment, damages of Rs. 15,000, injunction, cost and other consequential reliefs. The facts of this case shortly are, that under a hire-purchase agreement dated 22nd Jan., 1962, the plaintiff No. 1 Chiranjilal Agarwalla obtain possession of a Bedford Diesel Truck bearing No. 3363815 on the engine and bearing Chassis No. J4LZP699920 and Police Registration No. ORB 1150. The plaintiff No. 2 was the guarantor under the said agreement. In the said suit the defendant No. 1 stated that as the entire stipulated amount under the hire-purchase agreement was not paid by the present plaintiffs, the defendant No. 1 had to file the said suit for recovery of the balance instalments as also for possession of the vehicle, in the alternative a decree for Rs. 15,000 being the market value of the said vehicle and other reliefs. The said suit was filed on 10th July, 1964 and on 15th July, 1964 an ad interim order was passed by this Hon'ble Court appointing Shyam Sunder Agarwalla, one of the employees of the defendant No. 1 as Receiver to take possession of the said vehicle, if necessary, with police help. On 31st July, 1964 the said ad interim order was made absolute.
(2.) The case of the plaintiffs in this suit is first of all that there has been mo service of writ of summons on them by Jai Hind Investment and by fraudulent suppression of summons and material facts the said company obtained the ex parte decree and purported to execute the said ex parte decree against the defendant No. 2 by way of Execution Case No. 30 of 1968 filed before the Subordinate Judge, Bhubaneswar and caused the notice dated 27th July, 1968 to be served upon the plaintiff No. 2, asking him to show cause as to why the said ex parte decree should not be executed against him by way of attachment of his property. It is the case of the plaintiff No. 2 that on receipt of the said notice he immediately caused searches to be made in the said Court and therefrom he came to know about the passing of the ex parte decree by this Hon'ble Court on 27th June, 1966 for Rs. 16,664 with interest and cost and also a declaration was made to the effect that the defendant No. 1 was the owner of the said vehicle. As such the said company was entitled to possession of the same. Thereupon the plaintiff No. 2 made an application in the said execution case for an order that the said ex parte decree passed by this Court was not executable against the said petitioner first of all, on the ground as no writ of summons was served on him and secondly, because of the fact that the said suit had been settled by payment of a sum of Rs. 11,351 by the plaintiff No. 1 under a settlement arrived at in the month of June, 1964. The said application was rejected by the learned Subordinate Judge on 12th Feb., 1969 on the ground that unless the ex parte decree was set aside, no order could be made on the said application.
(3.) It is the case of the plaintiff No. 1 that upon receipt of a notice by registered post from Messrs. P.D. Himatsingka & Co., he immediately came to Calcutta on 80th July, 1964 and after coming to the Gila Post Office Street, he met an unknown Mouhrer and by paying 8 annas to the said unknown person the came to know that his name was appearing in the daily cause list. As such he immediately went to the office of the defendant No. 1 and paid a sum of Rupees 2,000 towards balance instalments. It as the positive case of the plaintiff No. 1 that while receiving the said sum of Rs. 2,000, the defendant No. 1 never disclosed to him that any suit was filed against him toy the defendant No. 1 and there has been a suppression of the said fact by the defendant No. 1. It is his further case that there was an agreement at the office of the defendant No. 1 whereby the plaintiff No. 1 agreed to settle the matter and agreed to pay the balance amount to the defendant No. 1 within a few days' time. Thereafter he came back to Jatni at Orissa. On 6th Aug., 1964, according to the plaintiff No. 1 he went to Cuttack High Court where he met the defendant No. 2, Krishna Kumar Bagla and from him he came to know that the had gone to Orissa, as authorised by the Receiver Shyamsunder Agarwalla, for the purpose of taking possession of the said vehicle. The defendant No. 1 showed him an authority letter granted by the Receiver and there it was agreed between the plaintiff No. 1 and the said Krishna Kumar Bagla that upon payment of a sum of Rupees 11,351 he would not take possession of the vehicle and would settle the matter with the plaintiffs. The plaintiff No. 1 in his evidence stated further that while such discussion for settlement was going on, Krishna Kumar Bagla telephoned at the office of the defendant No. 1 at Calcutta and received the authority to settle up the matter. It was further arranged that Krishna Kumar Bagla would visit Jatni on the following day where the said vehicle was lying in the custody of the plaintiff No. 2 at his garage and payment would be made there accordingly, Thereupon, on the following day Krishna Kumar Bagla went to Jatni. The said sum of Rs, 11,351 was paid by chiranjilal Agarwalla in fine presence of Purna Chandra Ram and a document was sign-ed and executed by the said Krishna Kumar Bagla acknowledging the receipt of the said sum and also recording therein about the facts of the settlement of the suit and also ha assured that he would on his return to Calcutta cause the said suit to be settled and/or withdrawn; At that time, it is the case of the plaintiffs, that the said Krishna Kumar Bagla handed over not only the receipt being Exhibit B but also handed over the letter of authority granted by Shyamsunder Agarwalla, the Receiver appointed in the said suit. As such the said K.K. Bagla did not take possession of the said vehicle and on Sept. 19, 1984 the said vehicle although was previously lying seized by the police at the time when Krishna Kumar Bagla went to take possession it was subsequently released by them and handed over to the plain-tiffs, which according to them are still being run in Orissa.;