Judgment Brishkhetu Saran Sinba, J. 1. This appeal by the defendants first party in the court below, i. e. , defendants 1 and 2, is directed against the judgment and order dated 17th June, 1976, passed by Shri Bindeshwari Prasad Verma, subordinate Judge, Katihar in title suit No.259 of 1972, 2. The plaintiff, the State of Bihar, filed the afore said suit for setting aside an ex-parte decree passed by the Munsif, Katihar, title suit No 639 of 1964 on the 30th of Janaury, 1970. 3. The plaintiffs suit, in brief, was that the father of defendants 1 and 2 was an ex-intermediary in relation to cadestral. survey khata Nos.139 and 140, appertaining to touzi No.1239 of village, Katihar, which in the revision survey, have been numbered as Nos.617 and 637. In the year 1952 the interest of the ex-intermediary vested in the State Of Bihar and, as such, defen dants No.1 and 2 had no right, title or interest in -the suit property which is a tank having an area of 53 acres and a Bhinda, around it of 17 acres. According to the plaintiff, title suit No.639 of 1964 was filed in the court of Munsif, katihar, for a declaration that the survey entry with respect ,to the aforesaid two khatas, in the revision survey was erroneously shown to be in favour of the State of Bihar and that they had raiyati interest in those two khatas. In the aforesaid suit the State of Bihar appeared on 26th April.1968, through an A. G. P. (defendant No.3) and in which only petitions, were filed for time to file written statement. Ultimately, on 5th January, 1970, when again an application was filed for time, to file a written statement, the. court directed that the suit be fixed for 19th January, 1970 for- hearing ex-parte and rejected the prayer of the defendant for time. But it farther observed that if on that date the defendant would file written statement then it would be considered. On 19th January, 1970, again only prayer Was made on behalf of the defendant (the plaintiff in the present suit, under appeal)for time to file written statement which was rejected and the next date fixed was 28th January, 1970 On 28th January, 1970 also prayer for time to file written statement was made and no prayer was made revoke the order for ex-parte hearing. The Munsif, therefore, directed the suit to be put up for hearing on the next day i. e. , on 29th January, 1970, On that date again a prayer was made for time to file written statement and no prayer was made to set aside the order for ex-parte hearing, which was again refused. Later on, the case was taken up for ex-parte hearing on 29th Januray, 1970, when no one appeared for the defendants in that suit, and the case proceeded ex-parte. On 30th January, 1970 the final order was passed in that suit on the basis of which a decree was passed. 4. The plaintiffs case further was that thereafter on.25th March, 1972, for the first time defendants No.1 and 2 started interfering with the possession of the plaintiff over the aforesaid two plots and then having discovered, on enquiry, that an ex-parte decree has been obtained in respect of the property by fraud, the present suit instituted to set aside the ex-parte decree as, according to the plenty, it had been obtained by practicing fraud by defendants 1 and 2 in collusion with the A.0. P. defendant No, 3, and the law moharrir. 5. Two sets of written statement were filed, one by defendants 1 and 2 the other by defendant "no.3 who, at the relevant time, was one of the A. G. Ps at Katihar. 6. The defence of defendants 1 and 2 was that the aforesaid property was in possession of the ex-intermediary before the vesting of zamindari and was being managed by the Manager of the Court of Wards as the interests of the ex-intermediary had been put in charge of the Court of Wards. It was their further case" that on, 16th August, 1952, the said property along with others was put in the possession and management of these defendants by the Manager of the Court of Wards and the same had never been treated as sairat interest of the State. The allegation that there was fraud committed by these defendants, in collusion with defendant No.3 and the law moharrir was also denied. 7. The allegation that there was fraud committed by these defendants, in collusion with defendant No.3 and the law moharrir was also denied. 7. In the written statement filed by the A. G. P. (defendant No, 31 it was stated that if a written statement in the eelier suit had not been filed the fault was not his because it was for the G. P. to have sent the written statement after property drafting the same and getting it verified and he had merely to file it in court. The written statement having dot been sent to him, he Was never in a position to file it. His-further defence was that it was that it was for the law clerk to fake steps, for filing written statement with the aid of the G. P. 8. Both sides, in support of their respective cases, tendered a number of documents and led oral evidence on a consideration of which the learned Subordinate to Judge decreed the suit of the plaintiff on the finding that the defendants did not have a strong case and, therefore, had motive to commit from and that the decree in title suit No.639 of 1964 was actually obtained by deceitful means. He accordingly set aside the ex-parte decree passed in the aforesaid suit. 9. In support of this appeal Mr. Tarakant Jha has advanced only two submissions. The first submission of the learned Counsel is the suit was barred by limitation. The second submission of the learned Counsel is that on the pleadings arid on the materials on record there was nothing to indicate that fraud was committed by defendants 1 and 2, nor was there anything to indicate that in the commission of the fraud, there was collusion between defendants 1 and 2 on the one hand defendant No.3 and the law moharrir on the other. Learned counsel has further urged that even if the case of these defendants in title No.639 of 1964 was a very weak one, that by itself would not be a ground to set aside the ex-parte decree in the absence of evidence in regard to fraud committed by the appellants or defendant No.3. 10. Before taking up the question of limitation, it has to be noticed that this point was not urged before the trial court. 10. Before taking up the question of limitation, it has to be noticed that this point was not urged before the trial court. Although in the written statement it was stated that the suit was barred by limitation, no issue even with regard to that matter was framed by the trial court. Mr. Jha, however, has urged that the question of limitation can be raised for the first time even before the appellate court if no further facts have got to be investigated. Submission of Mr. Jha is that on the pleading of the plaintiff itself, the suit was barred by limitation. 11. Article 123 of the Limitation Act provides a period to set aside a decree passed ex-parte or to re-hear an appeal decreed or heard ex-parte. The period is thirty days. Therefore, on the face of it, if the decree was passed on 30th january, 1970, in title suit No.693 of 1964, limitation would ordinarily begin to run from the 31st of January, 1970. However, in the instant case, the case of the plaintiff is that the ex-parte decree was a consequence of fraud. In that view Sec.17 of the Limitation Act would become relevant which provides that where, for a suit, a period of limitation is provides under the Limitation act, the period of limitation shall not begin to run until the plaintiff or the applicant has discovered the fraud or mistake or could, with reasonable diligence, have discovered it. Submission of Mr. Jha is that on the case in the plaint as filed by the plaintiff. itself, it come to know about the fraud on 25th March, 1972, and the instant case was filed on 22nd May, 1972. He, therefore, submits that the case barred by limitation as it was filed beyond the prescribed period of thirty days from the date of the knowledge of fraud. In paragraph 12 of the plaint it has been stated that the Block Development Officer, Katihar. made an enquiry in court and learnt for the first time on 25th March, 1972 that the defendants first party, i. e. , the appellants got an ex-parte decree in suit No.639 of 1964 on 30th January, 1970 and thereafter, on the basis of intensive enquiry, was convinced that the ex-parte decree has been obtained by committing, worst fraud upon the plaintiff. Therefore, it will be seen that in paragraph 12 it has not been specifically stated as to when the plaintiff-respondent came to know of the fraud. However, in paragraph 24 of the plaint it is further stated as follows "that the cause of action for this suit arose within the jurisdiction of this court on 30th January, 1970 the date of ex-parte decree obtained by fraud and collusion and on 25th March 1972 when the plaintiff for the first time came to know of this ex-parte decree on enquiry on 25th March, 1972 within the jurisdiction of this court. " In this para of the plaint there is the specific assertion that the plaintiff had knowledge about the fraud and collusion on 25th March 1972 Hence on the pleading of the plaintiff itself no further investigation needed and it has to be field that the suit was barred by limitation. 12 On behalf of the State a strange argument has been advanced to resist this submission. It was argued, and I must confess that I have not been able to understand the submission, that party aggrieved by the ex-parte decree in Title suit No.639 of 1964 was not the Block Development Officer but the collector, Purnea. In support of this contention reference has been made to various provisions of the Bihar Land Reforms Act which provide that after the vesting in favour of the State, the interest of the ex-intermediary shall be managed by the Collector of the district concerned. Even with regard to this argument the definition of collector as given in that Act, has not been taken into account which provide that the Collector shall include various other authorities but not below the rank of a Sub-Deputy Collector, who may be notified on behalf of the State Government to act as the Collector. It has not been shown that in Purnea the Collector alone was the authority who has been given the power with regard to the vested property of an ex-intermediary Indeed on the records of this First Appeal there is nothing to indicate that it any stage, with regard to either Title suit No.639 of 1964 or the present suit out of which this appeal arises, the matter was ever before the Collector. Even the plaint in this suit has been verified and affidavit by the Additional Collector of Purnea and not by the Collector. Even the plaint in this suit has been verified and affidavit by the Additional Collector of Purnea and not by the Collector. Therefore, there is no substance in the submission that if this point was pressed then the plaintiff would has shown that the Collector had knowledge of the case within thirty days preceding 22nd May, 13. Under Sec.3 of the Limitation Act is the duty of the court to dismiss a suit if it has been filed after the prescribed period and even though plea of limitation has not been set up as a defence. In the case of Gujadhar Ravi V/s. Ram Charan Gape and others (A. I. R.1930 Patna 256) a Full Bench of this Court held that under Sec.184 of the Bengal Tenancy Act, the Court was bound to dismiss the suit if it is a suit under Schedule 3 of the Act and is not in situated within the time prescribed in that Schedule although limitation has no" been pleaded. Similarly, in Ramayan Dubay and others V/s. Chitradeo Rai and other (A. I. R.1969 Patna 85) a Single Judge of this Court pointed out that it was the duty of the Court itself to see whether the suit was barred by limitation In this case I have already pointed out that on the plaint itself, the suit was barred by 14. As learned counsel for the parties argued this appeal on merits also i would record my findings on merits as well. The case of the plaintiff-respondent was based upon the fact that fraud was practiced by the defendants appellants in collusion with dependent No.3 and that was how an ex-parte decree was obtained. With regard to fraud, in paragraph 12 of the plaint it has been stated that when the plaintiff case to know about the ex-parte decree an intensive enquiry was made into the who matter and thereafter the plaintiff was convinced that the afore mentioned ex-parte decree in Title suit No 639 of 1964" was obtained by the defendants first party by committing worst fraud upon the court. The facts which led to this conclusion have not been stated in the plaint itself and in the evidence led by the plaintiff nothing has been stated as to on what basis on what enquiry the plaintiff came to the conclusion that fraud had been practiced in the case. The facts which led to this conclusion have not been stated in the plaint itself and in the evidence led by the plaintiff nothing has been stated as to on what basis on what enquiry the plaintiff came to the conclusion that fraud had been practiced in the case. No doubt, evidence has been led that defendants 1 and 2 had a very weak case when they filed Title suit 639 of 1964 and, therefore, they had a motive to practice fraud. However, in this connection it has to be borne in mind that falsity of the claim itself does not constitute fraud. In the case of Mt. Laganmant Kuar and another V/s. Ram Gobinda Singh and others (A. I. R.1942 Patna 357) Sir Fail Ali, J. with whom Harries, C. J. agree, held :- "the question as to the falsity of the claim does not by itself constitute fraud. It has been held in a series of cases of this Court that this question can be gone into only to make the case of fraud probable and to show by the fraud was committed, it has, therefore, to be seen that apart from the weakness or falsity of the case of defendants 1 and 2 in Tide suit No.639 of 196-4 whether there was any other material which would indicate that fraud had been committed. 15 In this connection it has to be in mind that although Title suit No.639 was filed in the year 1964, the State of Bihar, the plaintiff respondent in the present case, appeared through the A. G. P. on 26th April, 1968, and till 30th January, 1970, when the ex-parte decree was passed, even the written statement in the case had not been filed. The order-sheet of Title suit 639 of 1964 shows that on 18th December, 1969, the court, in granting time to the plaintiff-respondent, had awarded a cost of Rs.10/- still up to 29th January, 1970, when the case was taken up for ex-parte hearing, the written statement had not been filed. The order-sheet of Title suit 639 of 1964 shows that on 18th December, 1969, the court, in granting time to the plaintiff-respondent, had awarded a cost of Rs.10/- still up to 29th January, 1970, when the case was taken up for ex-parte hearing, the written statement had not been filed. Admittedly, the written statement, had not to be drafted and filed by the A. G. P. The plaintiffs own witness P. W.3 the Law Moharir has stated in paragraph 6 of his deposition that before preparing the written statement, statement of facts had to be called from the B. D. O. through the law clerk and then that had to be sent to the Government Pleader. The Government Pleader would then prepare a written statement which would be sent to the Additional Collector for his approval and when the Additional Collector would sign it, he would give it to the law clerk who would give it to the A. G. P, who, in his turn, would sign it and file in court. It is obvious, therefore, that in the preparation of the written statement, on the plaintiff respondents own evidence, the A. G. P. , had nothing to do with it. 16. In the instant case no evidence has been led as to what steps were taken from 26th April, 1968 to 29th January, 1970, by the plaintiff-respondent for the preparation of the written statement. Nothing has been stated even in the plaint to show as to whether statement of facts had been called for from the B. D. O , and whether it had been sent to the Government Pleader. In such circumstances, it is difficult to conclude as to how the A. G. P. , was at fault in the matter. He has stated in his evidence on oath that he never received the written statement- and for that he was always asking the law clerk to take necessary steps through the Government Pleader. But that was not done in the case. He was, therefore, nor in a position to file the written statement and from what I have indicated above the fault was not his at all. 17. But that was not done in the case. He was, therefore, nor in a position to file the written statement and from what I have indicated above the fault was not his at all. 17. The trial court has stated that the decree was obtained by practicing deceitful means only on the basis that after the learned Munsif had directed in title suit 639 of 1954 that the case would proceed ex-parte, no petition was filed by the A. G. P. to set aside that order and give time for filing written statement. This by itself cannot be a ground for holding that there was fraud. This aspect of the matter is capable of innocent explanations as will. In the first order on 5th january, 1970, when the learned Munsif directed that the case would proceed ex-parte, on 19th January, 1970, he had further stated that if by then a written statement was filed it would be considered. Probably it was on the basis of that observation that subsequently the A. G. P. , was making prayer only for extension of the time for filling written statement. After that the case was again put up for hearing on 19th January, 1979, then adjourned to 28th January, 1970 and again adjourned to 29th January, 1970, when the court finally refused to adjourn the case. On that date the learned Munsif with the case and no one appeared on behalf of the plaintiff-respondent in Title suit No.639 of 1964. If the plaintiff respondent did not choose to appear, did so at his own risk and it was not incumbent upon the court to go on obliging the plaintiff respondent by adjourning the case sine die to suit its convenience. I am, therefore, on the materials 01 the record, unable to hold that any fraud was practiced in this case by defendants 1 and 2, namely, the appellants, in collusion with defendant No.3 and the Law Moharrir in the case concerned. 18. In the result, the appeal is allowed,. the judgment and decree of the c6urt below are set aside and the suit of the plaintiff respondent is dismissed with costs throughout. Appeal allowed.