Judgement Appeal from a decree of the High Court (Aug. 11, 1897) reversing a decree of the Subordinate Judge of Pubna (Sept. 4, 1895). The respondent in his plaint alleged that three of the defendants had induced the first defendant to file a suit against him for arrears of rent beyond what was due, and that by fraudulent means, and without service of any summons, an ex parte decree was obtained in the said suit No. 1730 of 1893 against him; that, by a further series of frauds, the decree was executed in No. 157 of 1894 without his knowledge; and that the three defendants bought the respondents property in the village of Dogachi for a low price in the name of the fifth defendant. The respondent claimed that the decree in No. 1730 of 1893 and the execution and sale in No. 157 of 1894 should be set aside for fraud. The defendants denied the fraud, and alleged that the plaintiff had attempted to set aside the ex parte decree under s. 108 of the Civil Procedure Code and the execution proceedings under s. 311, but in each case had failed. Similar suits were brought by Pran Nath Roy against the defendants 2, 3, 4, one of them being named Radha Raman Shaha, which were numbered 304 and 328 of 1895, in which the same claim was made in regard to other suits followed by execution and sale of other properties. Law. Rep. 29 Ind. App. 99 ( 1901- 1902) Khagendra Nath Mahata V. Pran Nath Roy 30 The same issues were settled in all three cases. The defendants filed a copy of the judgment of the District Moonsiff upon applications made by Pran Nath Eoy, under s. 108 of the Civil Procedure Code, to set aside the ex parte decrees which are the foundations of this suit and of suit No. 304. The Moonsiff had found on the evidence of the serving peons that service of summons was duly made by fixing copies of the summons and plaint upon the defendants house, as he could not be found, and as no other person was present upon whom the summons could lawfully be served ; the application was therefore dismissed. The judgment of the Moonsiff, upon applications made by the judgment debtor in the same suits to set aside the sales in exe cution, was also filed. The judgment of the Moonsiff, upon applications made by the judgment debtor in the same suits to set aside the sales in exe cution, was also filed. The petitions were preferred under s. 311, and alleged fraud in not issuing attachments and publishing sale proclamations, by means of which the judgment debtor was not aware of the sales, and also material irregularities, by means of which he suffered substantial injury. The Moonsiff found that the attachments and proclamations had been duly issued, and that the judgment debtor was perfectly aware of the intended sales. He also found that the properties had been sold for adequate prices, and that there was no evidence that any irregularities which took place in the execution proceedings had caused substantial injury to the petitioner. Those petitions were therefore rejected. The Subordinate Judge of Pubna gave one decree and judgment in the three suits—304, 305, and 328. He dismissed each upon the first issue raised, holding that the unappealed decision rejecting the applications under s. 108 was fatal to the present suit. Against this decision the defendants in 304 and 305 appealed to the High Court, which in each case overruled the decision of the Subordinate Judge, and remanded the suit for a decision on the merits. The judgment was given in 304 (the suit against Radha Raman Shaha), which is reported in 24 Calc. 546. Against the decision an appeal was made to her late Majesty in Council. The record on the appeal did not contain the judgments of the District Moonsiff, which are stated above. Their Lordships dismissed the appeal. They said (Ind. L. R. 28 Cale. 475.) "We have nothing before us but the bare fact that the plaintiff endeavoured to get an ex parte decree set aside under s. 108 of the Civil Code of Procedure, under which the Court may try whether the summons was served or whether the plaintiff was prevented by any sufficient cause from appearing. We are not told what went on before the Court upon that occasion, and it is impossible to say that the matter now alleged as fraudulent matter came in any way before the Court under the application, which was made by virtue of s. 108." In this case the High Court followed its former decision in No. 304, as reported in 24 Calc. 546. 546. Mayne, for the appellant, contended that there was no foundation for the allegations of fraud on which the suit was based; that none were made by the respondent when he applied to set aside the ex parte decree; that all the facts which are now set up as establishing fraud were asserted and negatived in the proceedings taken in the original suit, No. 1730 of 1893. The respondent had failed to get the ex parte decree of which he complained set aside under s. 108 in the suit in which it was made. He could have appealed therefrom, and did not do so. The order, therefore, was final and binding in the suit in which it was made. And the respondent is precluded from bringing a fresh suit for the same purpose see Raj Kishen Mookerjee v. Modhoo Soodun Mundul (( 1872) 17 Suth. W. R, 413.), Aushootosh Chandra v. Tara Prasanna Roy. (( 1884) Ind. L. R. 10 Calc. 612.) The decision of the Moonsiff in dismissing that application, and also the further application under s. 311, shewed that there was no fraud. In Abdul Mozumdar v. Mahomed Gazi Chowdhry (( 1894) Ind. L. R. 21 Calc. 605.) no application had been made under s. 108. The respondent did not appear. Law. Rep. 29 Ind. App. 99 ( 1901- 1902) Khagendra Nath Mahata V. Pran Nath Roy 31 The judgment of their Lordships was delivered by LORD ROBERTSON. The suit out of which this appeal arises was brought by the respondent "for setting aside a decree and auction sale, on finding them to be illegal, fraudulent, and collusive." The defence, in support of which the appeal is brought, is that the action cannot be maintained, because the respondent applied under ss. 108 and 311 respectively of the Civil Procedure Code to have the decree and sale set aside; his application was refused; and he did not appeal against the refusal. It is therefore necessary to ascertain what are the true grounds and scope of the present suit, in order to see whether the refusal of the applications under the sections specified has already determined the questions now raised. It is therefore necessary to ascertain what are the true grounds and scope of the present suit, in order to see whether the refusal of the applications under the sections specified has already determined the questions now raised. The respondent avers in his plaint that he inherited certain properties from his mother, and is now the true proprietor of these; but that those of the appellants whose name is Shaha had long coveted those possessions and formed a design to acquire them; that they procured a person now represented by the minor appellants to institute a groundless suit for moneys which were not due; that, in order to get the respondent out of the way, they, by a collusive suit, got him declared a lunatic, and by threats forced him to leave his home and stay elsewhere in secrecy ; that they concealed the money suit, got a false return of service, and carried through the decree and sale of the properties behind the back of the respondent. These allegations are plainly an attack, not on the regularity or sufficiency of the service or the proceedings, but on the whole suit as a fraud from beginning to end. It seems to their Lordships, now that the matter is fully before them, as it did on less complete information to the Board which had previous cognizance of the question, as raised in an appeal of Radha Raman Shaha v. Pran Nath Roy (Ind. L, R. 28 Calc. 475,) on identically the same ground, that this is a case generically different from any which was, or indeed could be, determined under ss. 108 and 311 of the Civil Procedure Code. Those sections limit the attention of the tribunal to specific matters, and, instead of subjecting to inquiry the radical question now involved, they assume the existence of a real suit. But here the suit itself is attacked as a fraud; and the fraudulent and violent incidents of its progress, as, for instance, at the stage of service and in the abduction of the respondent, while they may individually have founded an application under ss. 108 and 311, are here treated as parts and indicia of a whole. As the matter must go for trial and the investigation of the facts, their Lordships do not think it well further to discuss the bearing of those facts as now alleged. 108 and 311, are here treated as parts and indicia of a whole. As the matter must go for trial and the investigation of the facts, their Lordships do not think it well further to discuss the bearing of those facts as now alleged. They will humbly advise His Majesty that the appeal ought to be dismissed.