JUDGMENT Sharpe, J. - This appeal is by Defendant No. 1 and arises out of a suit brought by the Plaintiff to set aside a decree and the sale held in execution of that decree. The facts material for the present purpose are that Dewan Ali, father of the present Appellant, instituted Title Suit No. 74 of 1932, against Thanda Meah and others for recovery of the land of 3 Schedules. He was successful in that suit with regard to the land of No. 1 Schedule only; his claim to the land of Schedules 2 and 3 was dismissed. In that suit, Thanda Meah, the present Plaintiff, claimed only the land of Schedule 3. Subsequently Dewan Ali brought a suit for mesne profits against Thanda Meah and others in respect of the land of Schedule 1 and got an ex parte decree. In execution of that decree he put to sale the land of Schedule 3 and purchased it himself at a nominal price. At the time of the ex parte decree and sale, the Plaintiff was residing at Rangoon and on learning of the sale he brought a case under Or. 21, r. 90 for setting it aside. That case was, however, unsuccessful, and consequently the Plaintiff instituted the suit out of which this appeal arises for setting aside the ex parte decree and the sale in execution, alleging that the decree had been obtained on a false claim by fraudulent suppression of summons. He alleged further that there had been fraudulent suppression of processes in connection with the execution sale in consequence of which his property valued at Rs. 1,000 had been sold for Rs. 30 only. The following issues were framed by the learned Munsif who tried the suit:-- 1. Is the suit barred under sec. 47 and Or. 21, of the Civil Procedure ? 2. Is the suit barred by the principle of res judicata? 3. Was the decree and sale in question obtained and brought about fraudulently? Are these liable to be set aside ? 4. To what reliefs, if any, is the Plaintiff entitled? 2. Is the suit barred under sec. 47 and Or. 21, of the Civil Procedure ? 2. Is the suit barred by the principle of res judicata? 3. Was the decree and sale in question obtained and brought about fraudulently? Are these liable to be set aside ? 4. To what reliefs, if any, is the Plaintiff entitled? 2. On the main Issue No. 3, the trial Court held summons had been duly served on the Plaintiff in the S.C.C. Suit, and in view of that finding he did not consider the evidence adduced by the Plaintiff to show that the claim of that suit was false, relying on the decisions reported in Nalini Kanta Mukherji v. Hari Nikari 29 C.W.N. 325 (1925), Baikunta Chandra Dhupi v. Prahlad Chandra Dhupi 30 C.W.N. 560 (1925) and Esmile Uddin Biswas v. Shajoran Nessa Bewa 35 C.W.N. 303 (1930). In consequence of these conclusions, he held that neither the decree nor the sale in execution thereof was liable to be set aside, and on Issue No. 1 he held the suit was barred under sec. 47 and Or. 21, r. 92, C.P.C. Issue No. 2 was not pressed and was answered in favour of the Plaintiff but the suit was dismissed with costs on contest against Defendant No. I and ex parte against the rest. 3. On appeal, the decision of the trial Court has been reversed and the learned Subordinate Judge held in answer to Issue No. 1 that the suit was not barred either under sec. 47 or under Or. 21, r. 92, C.P.C., With regard to Issue No. 3 he held that the Court was competent to go into the falsity of the claim in the S.C.C. Suit for the purpose of determining whether there was any motive for suppression of summons in that suit and whether in fact summons had been fraudulently suppressed. His conclusion was that summons had been fraudulently suppressed. He did not come to any definite finding as to the falsity of the claim, but inclined to the view that the claim was false, and held that the decree had been fraudulently obtained, and should be set aside. In consequence of this finding, he held also that the sale in execution of the decree must also be set aside. He did not come to any definite finding as to the falsity of the claim, but inclined to the view that the claim was false, and held that the decree had been fraudulently obtained, and should be set aside. In consequence of this finding, he held also that the sale in execution of the decree must also be set aside. He, therefore, allowed the appeal and decreed the Plaintiff's suit, setting aside the decree in the S.C.C. Suit, but left it open to the heirs of the original Defendant No. 1, Dewan Ali, to prove their claim in the S.C.C. Suit if they so desired. Chunnu, one of the sons of Dewan Ali, has alone preferred this appeal. 4. Mr. Choudhury on behalf of the Appellant has contended that the decision of the learned Subordinate Judge has been vitiated by his consideration of the question of the falsity of claim in S.C.C. Suit and of motive for the purpose of determining whether summons in that suit had or had not been fraudulently suppressed, and on the authority of the decision reported in Baikunta Chandra Dhupi v. Prahlad Chandra Dhupi 30 C.W.N. 560 (1925), he has argued that the question whether the claim in S.C.C. Suit was false or not is irrelevant in a suit of the nature now under consideration. He has maintained that the learned Subordinate Judge acted illegally in not drawing a presumption from the Peon's report that there had been proper and sufficient service of summons and in throwing the burden on the Defendant to prove service. He has contended further that the learned Appellate Court was wrong in drawing an inference adverse to the Defendant on account of his omission to show that the claim in the S.C.C. Suit was true since that was not an issue in the suit and was not a matter in regard to which the Defendant was entitled to adduce evidence. Lastly, he has argued that the evidence on which the learned Subordinate Judge relied was entirely inadequate for a finding that summons had not been served, that the evidence, on the other hand, justified a finding of proper service, that the Plaintiff could get relief only by bringing a case under Or. 9, r. 13 to set aside the ex parte decree or by an appeal against the ex parte decree and that the provisions of sec. 9, r. 13 to set aside the ex parte decree or by an appeal against the ex parte decree and that the provisions of sec. 47, C.P.C., and of Or. 21, r. 92 are a bar to the suit now under consideration. 5. In reply to these objections, Mr. Das Gupta for the Plaintiff Respondent has maintained that the evidence was quite sufficient for the finding of the Appellate Court in regard to fraudulent suppression of summons, as well as the motive for such suppression which is perfectly relevant, and that these are findings of fact which cannot be disturbed by this Court in Second Appeal. He has also contended on the authority of Kalipada Mukerji v. Basanta Kumar Datta 35 C.W.N. 877 (1931) that the present suit is not barred either under sec. 47 or Or. 21, r. 92, C.P.C. 6. After consideration of the arguments and the judgments of the lower Courts, I do not think the decree of the learned Subordinate Judge should be altered. Rightly or wrongly he has come to a clear finding that summons was not served on the present Plaintiff in the S.C.C. Suit and that it was fraudulently suppressed, and those findings were reached without consideration of the evidence in regard to the truth or falsity of the claim in the S.C.C. Suit. I cannot agree with the contention that the question of the truth or falsity of that claim was irrelevant in the present suit. Indeed, the decision of Baikunta Chandra Dhupi v. Prahlad Chandra Dhupi 30 C.W.N. 560 (1925) relied on by Mr. Choudhury, as well as the decisions mentioned by the learned trial Court indicate sufficiently that such questions are relevant, and whilst it is true that the mere fact that the claim was false will not justify the setting aside of an ex parte decree where it appears that the Defendant had notice of the suit before the decree was made, when the Court finds that summons was not served and the Defendant was kept out of knowledge of the suit, evidence in regard to the truth or falsity of the claim is relevant for the purpose of determining whether the decree was fraudulently obtained. 7. 7. In his discussion of the evidence, the learned Subordinate Judge has indicated in a rather guarded manner the presumption to be given to the return of service of a process-server who was not examined as a witness, but I see no reason to suppose that he in fact under-estimated the presumption of correctness permissible under sec. 114 of the Evidence Act, and he has reached a definite finding that the presumption has been rebutted. I do not think either that the learned lower Appellate Court in stating his opinion that "the fact that other mokabila witnesses have not been examined by the Defendants goes against the Defendants" indicated any misconception as to the burden of proof which, in this case, was admittedly on the Plaintiff to show that there was no service of summons. When the material issue was whether summons had been served or not and both parties entered into evidence on that question, it does not seem to me that the Court acted illegally in taking the view which he did. 8. As I have said above, the truth or falsity of the claim in the S.C.C. Suit was not irrelevant in a suit to set aside a decree on the ground of fraud, and the Defendant was not prevented from producing evidence in support of the truth of the claim. The Plaintiff gave his evidence that the claim was false and if the Defendant omitted to offer any evidence on the matter, I do not think the lower Court erred in drawing an inference adverse to him if he thought fit to do so. 9. Whether the evidence was sufficient to justify a finding that summons was not served is a question of fact into which this Court need not enter. The learned Court has held that the summons was fraudulently suppressed and that the decree in the S.C.C. Suit was obtained by fraud. In view of those findings the decree in that suit, and consequently the sale in execution of that decree are liable to be set aside, and I must agree with the learned Subordinate Judge that in these circumstances neither sec. 47, C.P.C., under which the validity of the decree cannot be questioned, nor Or. In view of those findings the decree in that suit, and consequently the sale in execution of that decree are liable to be set aside, and I must agree with the learned Subordinate Judge that in these circumstances neither sec. 47, C.P.C., under which the validity of the decree cannot be questioned, nor Or. 21, r. 92, which debars only a suit to set aside an order setting aside or confirming a sale, is a bar to a suit of the present nature to set aside the decree in execution of which the sale took place. It is true that the indirect effect of this suit will be to set aside the sale and therefore the order confirming the sale, but when such indirect result flows from a declaration which can legally he made, this indirect result cannot operate to prevent the main relief being granted. 10. There is ample authority for the view that where an ex parte decree is alleged to have been obtained by fraud, the Defendant is entitled to institute a regular suit to set aside the decree on the ground of fraud. Indeed the decisions relied on by the Appellant indicates that his contention cannot be accepted, that the only relief open to the Defendant was to appeal against the ex parte decree or to apply under Or. 9, r. 13 to set it aside. For these reasons I think the matter has been rightly decided by the lower Appellate Court and that there is no ground for interference. The appeal is, therefore, dismissed but there will be no order as to costs of this Court.