Judgment :- K.J. SENGUPTA, J. (1) I have gone through the draft judgment of my learned brother. I agree with the conclu Lordship. However, I wish to add words to the same. This appeal was originally preferred the appellant above named, against the judgment and decree dated 14th June, 1995 passed District Judge, 2nd Court, contai. By the decree impugned the suit filed by the original app Original appellant filed this suit for declaration that she had title in respect of (ka) schedule the deed of family settlement and the defendant No. 1 has no title in respect of the same judgment and decree passed on 10th April, 1972 and 20th April, 1972 respectively in Title Court of Munsif at Contai filed by the plaintiffs husband late Kalipada Bakshi against the fraudulent, purposive, illegal and vitiated by fraud and the same is not binding on the plaint decree for cancellation of the same. (2) THE sum and substance of the case made out in the plaint is stated herein : the plaintiffs Bakshi was a renowned local Lawyer and acquired considerable wealth which includes large contai during his lifetime. The said Kalipada Bakshi in order to distribute and settle his prope and sons by and under a registered deed of family settlement dated 21st September, 1956 other his dewlling house in mouza Hatabari within the town of Contai along with other proper the defendants. The description of the said properties given to them are mentioned in (ka) According to the plaintiff since the date of registration of the said family settlement the plaintiff the instant suit have been enjoying and possessing the same. The said family settlement respects by incorporating names of the persons in the settlement record under the appropriate Similarly in the municipal records the said family settlement was placed for taking follow-up the names of the persons who are beneficiaries were mutated in the municipal records. In were also mortgaged for obtaining loan from the Co-operative Bank, Contai Branch. After when the original deed of settlement was sought to be taken back the plaintiff came to know t taken back earlier by the first defendant and kept in his custody. In were also mortgaged for obtaining loan from the Co-operative Bank, Contai Branch. After when the original deed of settlement was sought to be taken back the plaintiff came to know t taken back earlier by the first defendant and kept in his custody. The plaintiff has been re tenants of the dwelling house situated in the town of Contai acquired by the deed of family plaintiff wanted to execute a registered deed of family settlement in respect of the bastu defendant by a verbal settlement and called the defendant for sitting on 12th December, 199 came to know from the first defendant that she had no right to make settlement of the property by the first defendant that it was declared and held by the Court long ago that the said settlement was acted upon and as such it was cancelled in a suit filed by the plaintiffs husband and thereafter the said Kalipada gifted the properties to the first defendant. The said decree December, 1991 ex-parte in the Title Suit No. 124/1971 filed by the late husband of the plaintiff the plaintiff and other persons who are beneficiaries of the family settlement which include herein. Thereafter, the plaintiff duly obtained the certified copy of the judgment and decree of as the copy of the plaint on or about 21st December, 1991. She came to know for the first time collusive suit making her party to the said suit. It is alleged that the plaintiff was not informed a writ of summons of the said suit was not served on her. The said Kalipada since deceased local Court in collusion with the first defendant who was and still is an Advocate of the same peon under their control and caused him to write a false report to the effect that the writ of su was served. Thereafter ex-parte decree was obtained by suppressing the fact that the said de was acted upon. Thus the Court passed ex-parte judgment and decree on 10th April, 1972 an further alleged that upon misrepresentation being made and fraud being practised the plaintiff managed to keep the entire proceedings of the said suit secret, so much so the plaintiff re same, and had an ex-parte decree passed. Thus the Court passed ex-parte judgment and decree on 10th April, 1972 an further alleged that upon misrepresentation being made and fraud being practised the plaintiff managed to keep the entire proceedings of the said suit secret, so much so the plaintiff re same, and had an ex-parte decree passed. The factum of the said family settlement being husband was suppressed and after 2 years the said family settlement was sought to be cance the plaint of the earlier suit that the suit was barred by limitation. The plaintiffs husband and collusion with each other influenced the process server and thereby procured a report of the re of summons by the plaintiff. There was no occasion for the plaintiff to refuse to accept any sum attempted to be served. Moreover at the time of the fling of the suit and further passing of the S. N. Bakshi was minor and it was falsely represented before the Court as being a major suit, and he was not represented by the independent person as guardian. (3) THE instant suit was contested by filing written statement by the first defendant, Sekhar, come forward to file any written statement. The defence taken in the written statement maintainable and, is hopelessly barred by limitation. The plaintiff has neither cause of action n disclosed at all. It is alleged further in the written statement that the plaintiff was all along aw and also the ex parte decree passed in Title Suit No. 124/1971 and such fact of knowledge fact that the said late Kalipada filed a mutation case relying on the said decree and the plaintiff the same through the learned Lawyer. Thereafter, she too filed mutation case with the help wherein she stated that she had no title in other properties left by Kalipada. She consen effected on the application of Kalipada. The plaintiff is informed of this mutation, now she is any submission contrary to the same. That apart plaintiff had no title or ownership in the Kalipada Bakshi by reason of the fact that after the said deed of settlement having been d plaintiffs husband and defendants father late Kalipada Bakshi by a registered Will executed on bequeathed the properties in question along with other properties to the plaintiff and their five Nos. 1 to 5 separately by separate schedule. 1 to 5 separately by separate schedule. In terms of the said registered Will the defend receiving the property applied for mutation in their names in the records of Contai Municipality holdings were created. Afterwards the plaintiff also applied for mutation of her name in the same is pending for disposal as Mutation Case No. 49/1990-91. However, late Kalipada B Will for part of earlier disposition, by registered deed of gift partly, and by a deed of gift exe 1977 he transferred suit properties along with some other properties in favour of the first defent divested of the same and delivered possession in favour of the first defendant. Thus the absolute owner and has been possessing the same by mutating his name in the Municipality rates and taxes. The suit is also barred by limitation. (4) THE plaintiff cannot have any cause of action. The writ of summons was duly served and satisfied with the service of writ of summons passed the decree as there was no contest. The absolutely misplaced. Other allegations contained in the plaint cannot be agitated in the suit preferred nor any application has been made for setting aside of the ex parte decree. With the allegations and contention made in the plaint in earlier suit are deemed to have been adjudicate (5) SO he has prayed for dismissal of the suit. The other defendants namely defendant Nos statements. All these defendants have taken same stand. Allegations made in their respe almost identical. The defendant Nos. 2, 3 and 4 have filed joint written statement, while defe separately. The allegations and contentions are identical and the same support the plaintiff statement of the defendant No. 5 it is alleged that he was minor at the time of the passing of the suit and he was not represented by any independent guardian and in fact no guardian was a interest. It is also alleged by him that no writ of summons nor any notice was served. His lat the earlier suit in collusion with and connivance of the first defendant has obtained the decre the written statements it is alleged that his late father being the plaintiff in the earlier suit and practising Lawyer of the local Court. Father used to depend upon, and act acted under influence first defendant as he was looking after the family. Father used to depend upon, and act acted under influence first defendant as he was looking after the family. Taking advantage of the trust and confidence father the first defendant has caused the said decree to be obtained without writ of summons plaintiff or any of the defendants therein. Being eminent Lawyers of the local court they have officials to effect make-belief service of writ of summons as such the plaintiff in the earlier defendant has practised fraud. (6) UPON reading pleading the learned Trial Judge framed the following issues: (i) Is the suit maintainable as framed? (ii) Was the deed of settlement dated 21st September binding upon the parties as alleged? (iii) Was the decree in Title No. 124/71 of the first Court Contai obtained by practising fraud and misrepresentation? (iv) Has the plaintiff any right, title property? (v) Is the plaintiff entitled to the decree as prayed for? (vi) To what other relief the pla (7) UPON reading the pleading of both the parties we think that the learned trial Judge oug issue No. 2, for in his suit the learned trial Judge should not have endeavoured to go into th unless the decree passed in Title Suit No. 124/71 is reopened. With the passing of the decre of acting upon of the deed of settlement dated 21st September, 1956 has become futile. prove his case has examined herself on commission, one Bimalendu Panda, an employee body; one Sanjay Kumar Das, an employee of the Contai Co-operative Bank Ltd. ; one Amarn Lawyer, one Bikash Ranjan Maity, a tenant and shop-keeper; one Kishori Mohan Jana, a Dee Kumar Basu an employee of the office of the District registrar were called as witness by the case. (8) THE first defendant deposed to demolish the case of the plaintiff. Subhendu Bakshi the 5t himself as witness to support the case of the plaintiff. One Rambihari Ray was called as witness supporting plaintiff. (9) BESIDES one Sanatan Mal a local cultivator, Shyam Sankar Maity were called as witness behalf of the defendants. (10) THE learned Trial Judge after having read and analyzed evidence came to the findings th was duly served and as such the plaintiff has failed to prove her case. One Rambihari Ray was called as witness supporting plaintiff. (9) BESIDES one Sanatan Mal a local cultivator, Shyam Sankar Maity were called as witness behalf of the defendants. (10) THE learned Trial Judge after having read and analyzed evidence came to the findings th was duly served and as such the plaintiff has failed to prove her case. The learned Trial Jud 5th defendant or for that matter the plaintiff failed to prove that at the time of the passing of th of filing of the earlier suit the 5th defendant was minor. It has been further found by the learn along the plaintiff and the supporting defendants were aware of the existence of the earlier e persons remained silent and did not challenge the same before the appropriate Court within It is further found by the learned Trial Judge that there is no satisfactory explanation in suppo of the 5th defendant. He found further pursuant to the decree passed earlier all parties have a of the properties have been transferred to the third parties. It is further findings of the learned plaintiff fruitlessly tried to establish that the deceased Kalipada Bakshi being the plaintiff in the ex-parte decree from the 1st Court of the learned Munsif Contai by practising fraud. (11) MR. Puspendu Bikash Sau, the learned Counsel for the appellant while assailing the ju dismissal of the learned Trial Judge, submits that the learned Trial Judge upon total misre wrongly held that the suit was barred by limitation. This case is based on fraud as no writ of su rather the Court was misled to hold that the writ of summons was duly served upon the plaint the defendant in the earlier suit. As such the plaintiff was not aware of passing of the ex part suit. In case of fraud date of discovery of the same is the reckoning factor for the purpose of limitation. It is the burden of the plaintiff or the supporting defendant who got the decree ex prove with the cogent evidence that the writ of summons was duly served upon the plaintiff also other defendant in the earlier suit. It is an admitted position that the first defendant an plaintiff in the earlier suit was and is practising Lawyer of the local Court and they were very that they have tremendous influence and clout in the Court where the suit was filed. It is an admitted position that the first defendant an plaintiff in the earlier suit was and is practising Lawyer of the local Court and they were very that they have tremendous influence and clout in the Court where the suit was filed. There below should have examined scrupulously the issue of non-service of writ of summons for below ought to have called for the records of the earlier suit and examined by himself wheth due service of writ of summons was correct or not. (12) HE further submits that the learned Court below has erroneously held that the plaintiff an the present suit has failed to prove that the 5th defendant was minor at the time of the filing of passing of the decree. He would urge with a support of decision of the Supreme Court rep 702 that the learned Trial Judge should have accepted the school-certificate as best evidence decree was passed against the 5th defendant who was at that point of time minor. He after att accepted the said decree. Therefore, this decree has become void and the learned Court be so. In support of his contention he has relied on the following decisions : air 1968 SC 1413 , AIR 1971 SC 2184 , AIR 1934 PC 208, 37 CLJ 501, AIR 1967 SC 54, 20 IA 153, 15 Indian Case (13) MR. Haradhan Bondapadhya appearing for the first respondent, Sekhar submits that th has rightly dismissed the suit as it is hopelessly barred by limitation as from the evidence it is and the supporting defendants had knowledge of filing of the earlier suit and passing decree fact by act and conduct the parties to the earlier suit have accepted ex parte decree. The pla was a party to the earlier suit and she was served with the writ of summons. In the plaint there or connivance regarding service of writ of summons having been made out. It will appear from earlier suit that the learned Court held that service of summons was duly effected and there the aforesaid order regarding service. The plaintiff did not put any suggestion at the time of cro defendant nor any attempt has been made to prove that order regarding due and effective se passed collusively or fraudulently. (14) IT is further submitted that school certificate cannot be a conclusive proof of evidence of hearsay in nature. The plaintiff did not put any suggestion at the time of cro defendant nor any attempt has been made to prove that order regarding due and effective se passed collusively or fraudulently. (14) IT is further submitted that school certificate cannot be a conclusive proof of evidence of hearsay in nature. Mere exhibiting of the school certificate does not prove correct the certificate. No one has come forward to prove the correctness of the said school certificate was given by the 5th defendant or by the plaintiff to the defendant No. 1 when he was exa collusion or the plea of minority. Therefore, the decree cannot be reopened by separate su present suit or the supporting defendants being aggrieved could have approached the same ex-parte decree by making appropriate application or by preferring appeal. In support of his co on the decisions of this Court and Supreme Court reported respectively as follows: 70 CWN 4 and AIR 1961 SC 790 . (15) WE have heard the learned Counsels and we have gone through the pleadings an impugned judgment in this appeal. In order to decide whether the judgment passed by the correct or not we think only two points are to be considered. (i) whether the plaintiff/appellate defendants are having knowledge of passing of the ex-parte decree, if so whether the suit is secondly whether the writ of summons in the earlier suit was served or not. (16) THE suit is based on fraud on the allegation that no writ of summons was really served present suit and defendant in the 1971 suit. We are of the view that this plea could have be same Court the moment the plaintiff came to know such fraudulent act by way of suppressio summons and could have got the decree passed ex parte, set aside or the plaintiff/appellate approached the appropriate Appeal Court. Instead of taking this two courses of action the pres on the grounds of fraud. Had this course been taken then it would have been more con concerned to decide the matter. We do not think of course on this ground the suit cannot otherwise alleged by Mr. Haradhan Banerjee. By this time it is settled position of law that obtaining a judicial pronouncement, everything vitiates and this can be set right at any sta initiating even a collateral proceeding. We do not think of course on this ground the suit cannot otherwise alleged by Mr. Haradhan Banerjee. By this time it is settled position of law that obtaining a judicial pronouncement, everything vitiates and this can be set right at any sta initiating even a collateral proceeding. (17) THEREFORE we need not detain ourselves in this regard any move, since before the le issue was not raised. We shall discuss the issue of fraud on account of suppression of servi little later. We are inclined to discuss the question whether the plaintiff is having knowledge parte decree or not for it relates to the question of limitation. The learned Trial Judge has ta analysis of evidence adduced by both the parties (both documentary or oral). In the proc plaintiff and the supporting defendants were all along having full knowledge of the earlier ex-parte think that the learned judge has reached this conclusion absurdly or irrationally. We think possibly be drawn other than what the learned Trial Judge had done. It is evident from the e passing of the ex-parte decree husband of the plaintiff/appellant took steps in furtherance of was acted upon by the plaintiff, and the supporting defendants too have accepted such course late husband of the plaintiff/appellant. So we do not think the action brought by the plaintiff with one hence the action is stale. Accordingly the suit is barred by limitation. (18) AS far as the question of service of writ of summons is concerned we have seen from t previous suit wherefrom it appears that the writ of summons was served by process server plaintiff in the present suit. It appears to us the learned Judge before proceeding with the hear was satisfied with the fact of service of writ of summons, and by a separate order he has rec challenge in the present suit against the said recording of the learned Judge. In view of such re Judge before passing ex-parte decree we are of the view that there is hardly any scope to hol was not served upon the plaintiff or upon the contesting defendants. Mr. In view of such re Judge before passing ex-parte decree we are of the view that there is hardly any scope to hol was not served upon the plaintiff or upon the contesting defendants. Mr. Sau contends that service of writ of summons is not established it is permissible for the Courts to go into the me and if the court finds original claim is unfounded and/or false then inference regarding the fra this connection we have seen the judgment cited by him of the Patna High Court reported in (19) THEIR Lordships in this judgment in paragraph 16 came to conclusion as follows: ". . . . . . . . . . Where a new trial is sought upon the ground of fraud must be both alleged and course in such a case is to take independent proceedings to set aside the judgment upon the whole issue can be properly defined, fought out, and determined. " (20) THEN in paragraph 19 Their Lordships observed as follows: "where, therefore, the mere non-service of summons is not by itself sufficient to prove fraud, Court to go into the merit of the original claim and if the claim is found to be false, to draw such as the circumstances may warrant. " (21) IN paragraph 20 Their Lordships went on saying as follows: "the question as to the falsity of claim does not by itself constitute fraud. This question can be the case of fraud probable and to show why the fraud was committed. Fraudulent motive or d direct proof; in most cases, it can only be inferred. In the very nature of things fraud is secret in and in the means adopted for its success. Each circumstances by itself may not mean much together, they may reveal a fraudulent or dishonest plan. " (22) WE think in this case upon reading of the plaint of the earlier suit there cannot be any fra part of the husband of the plaintiff by reason of the fact that admittedly the properties belong the plaintiff/appellant and he settled the property by executing deed of settlement first. During to deal with his property in lawful manner and in the way he likes no consideration flew in the plaintiff/appellant cannot claim any equity either. During to deal with his property in lawful manner and in the way he likes no consideration flew in the plaintiff/appellant cannot claim any equity either. Subsequently when it was found that was not working properly the same was sought to be cancelled and this could only be pronouncement on lawful ground. Therefore the fraudulent motive cannot be inferred in the ea issues on the principle of law laid down by judicial pronouncement of above Patna High Court of deceit in order to achieve wrongful gain depriving someones lawful right. (23) THE decision of Supreme Court reported in AIR 1967 SC 1384 (Panna lal vs. Murari Lal the argument of Mr. Sau, rather it helps the case of the contesting defendant (defendant No the said judgment in its concluding portion Their Lordships held that: ". . . . . . . . . . . It is question of fact in each case whether the information conveyed to the de impute to him knowledge of the decree within the meaning of Article 164. The test of the suff information would mean to a stranger, but what it meant to the defendant in the light of his pre plaintiff and the facts and circumstances known to him. If from the information conveyed to knowledge of the decree sought to be set aside, time begins to run against him under Art. 1 that a copy of the decree should be served on the defendant. It is sufficient that the defendant material facts concerning the decree, so that he has a clear perception of the injury suffered effective steps to set aside the decree. " (24) HERE the learned Judge with cogent documentary and oral evidence found not only th other sons who are supporting him had perfect knowledge of passing decree and in fact conse the decree all persons indeed derived benefit. As such the fifth defendant did not challen having knowledge and attaining majority (assuming that he was minor) at the time of passing (25) THE fact in this case regarding knowledge and acting upon the decree passed earlier by and eloquent that the decisions cited by Mr. Shaw are of no help at all. As far as the ques defendant no. 5 is concerned we think Mr. Banerjee is right in his submission that it has not evidence that he was minor at the time of passing of the decree. Shaw are of no help at all. As far as the ques defendant no. 5 is concerned we think Mr. Banerjee is right in his submission that it has not evidence that he was minor at the time of passing of the decree. Mother being the best perso the Court what is the date of birth of her son, failed to do so. On the other hand the first defendant brother of the fifth defendant has said about his date of birth and further said that the date o school certificate is incorrect. In the circumstance it is very unsafe to accept the version of min the school certificate alone. The learned Trial Judge has come to findings that recording of the not proved and mere exhibiting of the document does not prove the correctness of the conte He has followed and applied the principle laid down by the supreme Court quoted in the judgment citation of Mr. Shaw on this question namely 2005 (3) SCC 702 is concerned we are of the vie on the fact in that case held that when there is no scope to get any evidence regarding age t the only piece of evidence which can be relied on. It has not been laid down by the Supr certificate is only document regarding conclusive proof of age unless such school certificate is witness. Moreover in the case before the Supreme Court it can be noticed that there was n correctness of the contents of the school certificate. In view of the aforesaid discussion a findings we do not think that the learned trial Judge has passed wrong judgment. Therefo decree passed by the learned Court below is affirmed hence appeal is dismissed, however, cost. Sanjib Banerjee, J. : (26) THE original appellant died in course of this appeal from a decree of dismissal and has the substitution which leads to an anomaly as the suit was filed by the original appellant However, her principal grievance was against her eldest son, the first defendant in the respondent before us. Of the other four defendants in the suit, at least one had all along suppo extent that we carry a distinct impression that the mother may have been persuaded to institute for the benefit of her youngest son. Of the other four defendants in the suit, at least one had all along suppo extent that we carry a distinct impression that the mother may have been persuaded to institute for the benefit of her youngest son. (27) THE suit was one for setting aside an ex-parte decree on the ground that no writ of summ on the plaintiff, who was a defendant in the earlier suit, and that the plaintiff in the earlier suit h officials to prepare a report showing apparent service. The plaintiff in the earlier suit was Ka Hemlata, the plaintiff in the later suit. The defendants in the earlier suit were Hemlata and th and Hemlata. The earlier suit was for a declaration that a deed of gift of the year 1956 was had not been acted upon and for the consequential cancellation thereof. The gift had been favour of Hemlata and the five sons and it covered several properties in Contai and near the S (28) THE plaintiff in the subsequent suit claimed that the entire exercise of service wa deceased husband in conjunction with her eldest son. This, she claimed, could be done as was an eminent lawyer of the Contai Court and at the relevant time her eldest son was also that Court. She claimed that the deed of gift of 1956 had been acted upon, inter alia, by documents of title relating to one of the properties covered by such deed to a bank by way of claimed that she had no inkling of the earlier suit and it was only in December, 1991 that she ex- parte decree of 1972 passed in title Suit No. 124 of 1971. According to her, the parties to th always proceeded on the basis of the deed of 1956 being valid, as did her husband during fraud committed in course of the earlier suit, according to the original appellant, were in the rep of writ of summons, in impleading youngest son Suvendu without indicating that he was a mi fact of the decree concealed from her and four of her sons. Her eldest son Sekhar had a role Sekhar subsequently claimed to be the donee under a deed of gift said to have been execute of one of the properties that had originally been gifted to Hemlata by the 1956 document. Her eldest son Sekhar had a role Sekhar subsequently claimed to be the donee under a deed of gift said to have been execute of one of the properties that had originally been gifted to Hemlata by the 1956 document. It assertion of his right to such property in December of 1991, that the appellant came to know and that it was only thereupon, after obtaining certified copies of the papers relating to the was filed in January of 1992 to challenge the ex parte decree of April, 1972. (29) THOUGH the plaint does not contain any particulars relating to fraud, it conveys a sense practised by Kalipada and Sekhar. The plaint indicates Sekhars motive in the exercise but b evidence of the original appellant taken on commission are silent as to the possible motive of defraud his second wife. (30) SEKHAR contested the later suit. He relied on documents that evidenced sales of a covered by the 1956 document, which were effected subsequent to the ex parte decree of 19 could not have been completed, according to Sekhar, without the direct or constructive know his brothers and, in fact, some of his brothers were witnesses to the documents of subsequent also relied on an unprohibited joint Will of his parents which was executed in 1975 and fr evident that the ex-parte decree of 1972 had been accepted and acted upon by his mother and the plaint of her being completely unaware of matters relating to the first suit and the decree false. (31) LEARNED Counsel on behalf of the substituted appellants submits that on the facts, it co suit was barred by the laws of limitation merely on the strength of the 1975 and the 1977 do Sekhar. The knowledge necessary, according to learned Counsel, for the purpose of section 1 was direct knowledge of the matter. Hemlata was an almost illiterate and, loosely speaking, had not been a party to any of the post 1972 documents that would debar her from maintaining not been demonstrated by the contesting defendant in the later suit that in course of proceedings subsequent to the 1972 decree, Hemlata had direct knowledge or any notice. Hemlata was an almost illiterate and, loosely speaking, had not been a party to any of the post 1972 documents that would debar her from maintaining not been demonstrated by the contesting defendant in the later suit that in course of proceedings subsequent to the 1972 decree, Hemlata had direct knowledge or any notice. (32) LEARNED Counsel for the appellants was of the view that it was open to the judgment decree to either apply under the provisions of Order 9 Rule 13 of the Code of Civil Procedure the decree had been obtained by practising fraud on Court. However, it was only in submissions on behalf of the contesting respondent, he cited AIR 1961 Patna 88 (Harich Prasad Singh and Ors.) in support of his contention that if the non-service of writ of su fraudulent scheme of the beneficiary of the ex-parte decree, a fresh suit ought to be the more (33) THE Patna High Court was rendered in an appeal from a decree setting aside the ex-parte suit on the ground of fraud. The judgment-debtors under an ex-parte decree filed a suit on th the original plaintiff had fraudulently got a false service report of summons prepared in collusion and in order to obtain the ex-parte decree. The later plaintiffs in that case went on further to s plaintiffs claim was false and fraudulent. It was not as if the subsequent suit was based on service report of summons, the underlying suggestion was that since the earlier plaintiffs cla there was motive in concocting a false service report as any semblance of contest would have suit failing. The learned Trial Judge held in the subsequent suit that the later plaintiffs had failed of summons and had failed to prove any fraud. On such findings he refused to go into the falsity of the claim in the previous suit. The later plaintiffs carried such decree of dismissal in consideration of the evidence, it was held that the later plaintiffs had succeeded in proving served on them. The Appellate Court also held that the earlier plaintiff had strong motive thereby to obtain a false service of summons. The later plaintiffs carried such decree of dismissal in consideration of the evidence, it was held that the later plaintiffs had succeeded in proving served on them. The Appellate Court also held that the earlier plaintiff had strong motive thereby to obtain a false service of summons. Such motive was to ensure that the later plai knowledge of the suit and, this did not have any opportunity of setting up their up their defence held that the earlier plaintiffs claim was totally unmeritorious and decreed the later plaintiffs su parte decree. (34) IN dismissing the second appeal, the learned Single Judge of the Patna high Court circumstances a subsequent suit would lie to set aside an ex-parte. He also considered plaintiffs suit being decreed on the question as to whether that would merely revive the earlier decree being set aside or whether the subsequent decree would also cover the merits of the After noting several authorities, the learned Single Judge summarized the legal questions thus " (15) It is a well-established principle that a decree once passed cannot be challenged by a s the ground of fraud practised on the court. It is not open to suitors who have exhausted the them, and after final decree has been obtained against them, to institute a fresh suit or series which is to declare that a decree, competently and with adequate jurisdiction obtained there them, although they are named in that decree. Such a suit is equivalent to a suit for the rescis a former decree of a competent Court. That rescission and destruction could be obtained only practised on the Courts: AIR 1915 PC 99: 42 Ind app. 171. (16) Where a new trial is sought up must be both alleged and proved and the better course in such a case is to take independe aside the judgment upon the ground of fraud, when the whole issue can be properly de determined: AIR 1918 PC 184. (17) By whatever procedure it is sought to overthrow a judgment on the ground of fraud, the alleged and its particulars unequivocally stated : AIR 1928 PC 261. Full particulars of fraud pleadings either as originally framed or as amended for the purpose: AIR 1914 PC 184. (17) By whatever procedure it is sought to overthrow a judgment on the ground of fraud, the alleged and its particulars unequivocally stated : AIR 1928 PC 261. Full particulars of fraud pleadings either as originally framed or as amended for the purpose: AIR 1914 PC 184. (18) No doubt, decree passed by a competent Court cannot be set aside by a suit, simply based on a false claim or on the mere ground that there was no service of summons of noti comes to a finding as in the non-service of summons or notice, it is open to it to go into the suit with the object of determining as to whether there was a motive for wilful or fraudulent su or summon in order to obtain a decree based on a false claim. (19) Where, therefore, the mere non-service of summons is not by itself sufficient to prove fra the Court to go into the merits of the original claim and if the claim is found to be false, to dra fraud as the circumstances may warrant : AIR 1936 Pat 135. (20) The question as to the falsity of claim does not by itself constitute fraud. This question ca make the case of fraud probable and to show why the fraud was committed. Fraudulent m capable of direct proof; in most cases, it can only be inferred. In the very nature of things frau or inception and in the means adopted for its success. Each circumstance by itself may not all of them together, they may reveal a fraudulent or dishonest plan : AIR 1951 SC 16 . (21) The question as to whether, when an ex-parte decree in a subsequent suit is set aside, th that decree was obtained is revived or not depends upon the pleadings, the issues and the subsequent suit. If upon an issue properly raised and tried in the subsequent suit it is held tha plaintiff in the original suit was false and fraudulent the effect of such a decision is to put an e suit cannot be revived and retried. If upon an issue properly raised and tried in the subsequent suit it is held tha plaintiff in the original suit was false and fraudulent the effect of such a decision is to put an e suit cannot be revived and retried. If, on the other hand, the ex-parte decree is set aside on obtained by suppression of summons by means of fraud and the defendant in the original su appearing in the suit and defending it by reason of fraud committed by the plaintiffs, the previ the plaintiff of that suit is entitled to have it tried and disposed of in accordance with law in spit subsequent suit the Court went into the question as to the plaintiffs claim being false as a g there was reason for him to obtain stealthily a decree behind the back of the defendant, by fra out of the knowledge of the suit and preventing him from defending the action: 12 Pat LT 493 (FB). " (35) ON the other aspect as to what was the level of proof necessary for a plaintiff to establish in an earlier suit, the learned Single judge of the Patna High Court relied on the following pass 278: "what is called the burden of proof on the pleadings should not be confused with the burden which is described as shifting. The burden of proof on the pleadings never shifts, it always initial burden of proving a prima facie case in his favour is cast on the plaintiff when he gives support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence out by the plaintiff. As the case continues to develop, the onus may shift back again to the decide at what particular stage in the course of the evidence the onus shifts from one side to the entire evidence is adduced, the Tribunal feels it cannot make up its mind as to which of the hold that the party on whom the burden lies has not discharged the burden; but if it has on the in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the (36) THOUGH the Patna case was cited only in course of the final stages of submission contained therein have not been doubted on behalf of the contesting respondent. It has been Patna Case, that not only did Hemlata fail to show lack of service of the earlier writ, ther Kalipada having any motive in concealing the earlier suit and, in fact, it would be apparent th of the ex-parte decree and her subsequent conduct demonstrated her acquiescence. The cha the palpable falsity of the claim in the earlier suit, it was submitted on behalf of the contestin spelt out in the later plaint and there was, indeed, no fraud or falsity in the claim even regarding fraud was overlooked. It was contended that it was an admitted position that in 1 undisputed owner of the properties forming the subject-matter of the deed of gift and notw Kalipada remained the de facto owner of the properties. (37) A number of documents were exhibited before the learned Trial Judge. These included ce sheets relating to mutation proceedings, the unprohibited joint Will of Kalipada and Hemla executed on December 30, 1975 and deeds relating to the sales of at least three of the prope part of the deed of gift of 1956 executed by Kalipada in 1977. (38) LEARNED Counsel for the appellants has taken us through the documents and has sub documents would establish that Hemlata had direct knowledge of the matters relating the emphasised as the learned Court below disbelieved Hemlatas case that she came to know only in December 1991. Hemlata had pegged her date of knowledge of the earlier decree a The learned court below disbelieving her on such count in effect, amounted to holding that the laws of limitation. For a plaintiff in an action for fraud to be denied the benefit under section 1 1963, the knowledge that was required to be ascribed was direct knowledge. In support o appellants relied on the decisions reported at 20 Indian appeals 1 (Rahimbhoy Hubibbhoy vs. (Swarnamoyee dasi vs. Probodh Chadra Sarkar and Ors.) and AIR 1971 SC 2184 [syed Mohiuddin and Ors. vs. Syed Shah Ahmed Mohiuddin Kamisul qadri (dead) by his legal repres (39) THE appellants also buttressed the charge of fraud on the ground that suvendu had not a time of institution of the earlier suit but such fact was actively concealed from Court. It was co passed against a minor was a nullity and could be taken as a ground to challenge the decr judgment-debtors. It was co passed against a minor was a nullity and could be taken as a ground to challenge the decr judgment-debtors. Though, not included in the paper book as one of the exhibits to be relied copy of suvendus Board Examination Certificate was handed over. It was submitted that suc be questioned. The following paragraph of the supreme Court judgment reported at 2005 ( Punjab vs. Mohinder Singh) was relied on for this proposition: "13. As observed by this Court in Umesh Chandra vs. State of Rajasthan ordinarily oral ev useful to determine the correct age of a person, and the question, therefore, would largely dep and the nature of their authenticity. Oral evidence may have utility if no documentary evidence the horoscope cannot be reliable because it can be prepared at any time to suit the needs o Entries in the school register and admission form regarding date of birth constitute good pro legal requirement that the public or other official book should be kept only by a public officer under section 35 of the Evidence Act is that it should be regularly kept in discharge of offic case, the entries in the school register were made ante litem motam. " (40) ON Suvendu being a minor, the further contention was that Sekhar had said in his maternal uncle Byomkesh Dutta was aware of Suvendus exact age, but Byomkesh was not contesting respondent had, thus, withheld what was the best evidence according to him and under section 114 (g) of the Evidence Act should be drawn against Sekhar and his contentio minor at the time of institution of the earlier suit. The decision reported at AIR 1968 SC 1413 ( vs. Mohammed Haji Latif and Ors.) was cited in this context. In that case the Supreme Court ought to draw an adverse inference against a person who, despite being in possession of the same, notwithstanding that the onus of proof did not lie on such person. (41) LEARNED Counsel for the appellants also cited the decisions reported at air 1934 PC Ahmaduddin Khan and Anr.) and 37 CLJ 501 (Saratkumari Dasi vs. Amullyadhan Kun proposition that court should take extra care to ascertain whether documents executed by a been read over to her so that she understood the same. (42) IN furtherance of the case, though not clearly made out in the plaint. (42) IN furtherance of the case, though not clearly made out in the plaint. that Kalipadas claim fraudulent, the old authorities of 22 Indian Appeals 153 (Ganga Bakhsh and Anr. vs. Jagat Bah (15) Indian Cases 529 (Rajaram Rajaram vs. Khandu Balu) were placed. On the strength of contended that a conscious deed of gift could not be annulled on the ground that it was cancellation of a deed of gift could not be justified by changed circumstances. There was al judgment reported at AIR 1967 SC 1384 [Panna Lal vs. Murari Lal (dead) by his legal represe support of the contention that when the summons in a suit had not been duly served, lim running against the defendant because he had received some vague information that some de against him though the onus was on the defendant to show that an application under order Procedure Code was within time and he had made the application within 30 days of his know Upon the defendant producing some evidence to show that the application was within time, it rebut such evidence and to establish satisfactorily that the defendant had knowledge of the days before the date of the application. Though Hemlata had not made an application under contended that the principle would apply as regards Hemlatas knowledge of the decree. It was Hemlata had shown, as she had done in this case, that she had instituted the suit within the she came to know of the decree on or after December 12, 1991, it was for Sekhar to demons aware of the decree prior to the period of limitation. (43) ON behalf of Sekhar, the principle contained in section 44 of the Evidence act as to the f stressed upon. It was contended that a decree could be reopened only on the ground of fra required to be established and the charge of fraud levelled by Hemlata was devoid of par incredulous. Learned Counsel for the respondent placed Hemlatas evidence, taken on commis case run by her could not be believed. It was suggested that Hemlata was not sure whether the time of institution of the earlier suit and, in any event, it was only for the minor, upo challenge the decree passed against him. Suvendu had filed a suit challenging the decree on was after Hemlatas suit. It was suggested that Hemlata was not sure whether the time of institution of the earlier suit and, in any event, it was only for the minor, upo challenge the decree passed against him. Suvendu had filed a suit challenging the decree on was after Hemlatas suit. In any event, Suvendu had allowed the issue as to his age being a present suit and upon such issue having gone against him, his pending suit is meaningless. (44) OUR attention was drawn to the various documents, particularly, those relating to mutatio Will of Kalipada and Hemlata, to suggest that it was inconceivable that such documents co without Hemlata being aware of them or the proceedings in connection therewith or of Heml being unaware of the decree of 1972. (45) IT was contended on behalf of Sekhar that the documents had been exhibited without obj contents thereof stood admitted. In support of such legal principle, the Division Bench judgment 452 (Lionel Edwards Ltd. vs. State of West Bengal) was placed. In addition, air 1983 SC 114 Narayanibai) was cited in support of the contention that the appellants had failed to establish decree under challenge was perverse and as such it was not for this Court to reassess th learned Trial Court or to re-examine all matters. AIR 1961 SC 790 (Kaushalya Devi vs. Baijn for the proposition that a decree may be voidable at the instance of the minor but it is not decision reported at 44 CWN 849 (Durgagati Banerjee and Ors. vs. Taharulla Mia) was pla principle laid down by section 44 of the Evidence Act to the effect that unless fraud was allege earlier decree could not be reopened by a person who was a party to the decree. (46) KALIPADA was married earlier and had issues out of his first marriage. The 1956 d Kalipadas father, also a Lawyer in the Contai court, had gifted immovable properties to Kalip marriage and that he had otherwise been well provided for. The properties covered by the undoubtedly Kalipadas. Even without going into the merits of Kalipadas suit seeking ca document, it is evident that the names of the owners were changed in the official records in properties following the 1956 document. The properties covered by the undoubtedly Kalipadas. Even without going into the merits of Kalipadas suit seeking ca document, it is evident that the names of the owners were changed in the official records in properties following the 1956 document. What is not known, however, is whether notwithsta change in ownership, it was Kalipada who wielded the effective rights as owner of such pro Kalipadas sons other than Sekhar were minors. The youngest was said to be a child. It was the earlier suit that he continued to exercise full ownership rights and the materials tendered in suit did not detract from the factual basis of Kalidass claim. For reasons that need not be go thought that the properties would be better secured if they were in the names of his second w out of his second marriage. They were gifts made out of his love and affection and consideration received from the transferees. However, upon that deed being executed and tra the properties covered thereby, the doner had no right thereto unless the donee acquiesced notwithstanding, Hemlatas insistence that such deed had been acted upon was supported by mortgaged one of the properties that had come to her under that deed for obtaining a bank loa (47) IN her evidence Hemlata came through as a fulltime housewife unaware of business tran True, there was a loan obtained in her name but it was unlikely that she had much to do with any more to do with the repayment of the loan. This is apparent from an overall reading of the learned Court below did not have the advantage of Hemlatas demeanour in course of he was received on commission. (48) BUT the merits of the first suit could be visited only upon the matter as to service of sum This primary issue could not be adequately adjudicated upon. Whether any further enquiry fraud was called for, depended on the Courts conclusion as to service of writ of summons been effected. Hemlata denied service and notice. Sekhar claimed that he had been duly se defendants in the earlier suit. (49) FROM the order sheet in the earlier suit, the following orders have been placed to sugge harboured doubts as to service: Order No. 4 dt. 10. 6. 71: Plaintiff files hazira , summon a upon the defendant duly served but they do not turn up. To 10. 7. (49) FROM the order sheet in the earlier suit, the following orders have been placed to sugge harboured doubts as to service: Order No. 4 dt. 10. 6. 71: Plaintiff files hazira , summon a upon the defendant duly served but they do not turn up. To 10. 7. 71 for ex-parte hearing of the suit. Sd /- Illegible Munsif " "order No. 6 dt. 22. 7. 71: Plaintiff files hazira. The plaintiff files document as per list. The suit is taken up for ex parte hearing. P. W. 1 Kalipada Baxi is examined on S/a. Document marked Ext. 1. For full satisfaction about service of summons upon defendants send the summons through the verification clerk for verification of its proper service upon each and all the defendants. To 21. 8. 71 for report of V. C. Sd /- Illegible Munsif " "order No. 7 dt. 8. 8. 71: It appears that even after written judicial order of the Court for verification of process the said order of the Court has been disobeyed on the ground that only disposed of cases be allowed to be sent for verification. This Court given this special judicial order for special verification of this process by V. C. as a special case which is required by this Court for a fair judgment of this case. Nazir to arrange for special verification immediately without undue delay. Dictated: Sd /-Illegible ????????????????????????????????????????????????????????????? Illegible Munsif ????????????????????????????????????????????????????????????????????? Munsif " "order No. 14 dt. 6. 1. 72: Report submitted by the verification clerk. Report is satisfactory and summons against defendants are held to have been properly served. Put up on 13. 1. 72 for order. Sd /- Illegible Munsif (50) THE final order culminating in the decree in the earlier suit has also been placed: "order No. 19 dt. 10. 4. 72: record is put up today for orders. The plaintiffs case is that the su that with a view to saving the same from same apprehended danger, be executed one nirupanpatra in favour of the defendants in respect of the same, that he had no intention to tra deed and the deed and the land have all along been in his possession; that the defendants the suit lands but in spite of that they have been claiming title to the lands. Hence this suit. P. W himself, has proved the plaint case. Hence this suit. P. W himself, has proved the plaint case. The plaintiff is entitled to get the relief prayed for. C. F. pa D E R E D that the suit be decreed ex parte without cost. It is hereby declared that the deed 5340 registered by the Joint Sub-Registrar of Contai on 24. 9. 56, is void and inoperative an concerned passed to the defendant by that deed. The defendants are permanently restrained to the suit lands through the said deed. " (51) THE issue as to service of writ of summons in the earlier suit has to remain unresolved below has noticed, the relevant file in which the records relating to service were required to longer available. Under the rules of procedure laid down, such records were required to be years and thereafter the appropriate rule provides for destruction thereof. In the usual course to service would have been destroyed long prior to the institution of the later suit. (52) IT is thus that other materials have to be looked into to throw some light on such matter. be looked into to gauge if Hemlata had contemporaneous knowledge of the decree or had a the decree. In course of such exercise, the learned Court below examined the exhibit documentary evidence before it and arrived at the conclusion that Hemlatas knowledge of th sofely be concluded from such documents. Such exercise by the learned Court below has appeal, on the basis of Hemlatas oral testimony and the fairly admitted position that she w mostly confined to the inner sanctum of the Bakshi household. Hemlatas evidence was dis court below on the score that the Advocate Commissioner recording the testimony was not exa learned Judge was probably slightly more technical than was necessary in the circumstances objection that there were serious discrepancies in the recording, evidence taken on commissio be rejected. We have, therefore, had to look into Hemlatas oral evidence to examine wh claims. (53) HOWEVER, that it is her admitted status in matters relating to money and properties tha what she would want us to believe. In the state of the evidence that prevailed in the learned no material to suggest that Hemlata would be actively involved in the loan transaction in which mortgaged but totally removed from the papers filed on her behalf in the mutation proceeding decree. In the state of the evidence that prevailed in the learned no material to suggest that Hemlata would be actively involved in the loan transaction in which mortgaged but totally removed from the papers filed on her behalf in the mutation proceeding decree. It would be difficult to accept that after Kalipadas death she executed papers at Se knowing the contents thereof, if we were to place any reliance on her assertion that she was the properties that came unto her by the 1956 deed equitably in favour of her five sons. There in Hemlatas plaint assertion of her dominant role and her testimony as a docile dependent. be pardanashin for the transactions which could impute knowledge of the decree on her, and matters which would evidence that the 1956 deed had been actively acted upon by her. behind the purdah, she had to remain there. (54) HEMLATA was 80 years old when the later suit was filed. She had a hunched back according to her, stand or walk straight, there were heart ailments that afflicted her and she ha travel. In her oral testimony it was not her case that she either had a strained relationship wi prior to Kalipadas death, there was anything amiss between her and her eldest son. examination of the defendant Nos. 2 to 5, Hemlata was helped to explain away the various had relied upon to demonstrate that Hemlata must have been and was, indeed, aware of the consequences thereof. Her response was: "i did not file any application in the Municipality or B. L. and L. R. O. Office for mutation abo Sekhar is a Muktear. My husband used to consult with Sekhar about his properties. I did husband used to trust his eldest son Sekhar too much. I have been possessing the properties settlement. My sons did not possess any room or land by force. I have given them permission . . . . . My husband had no right to possess that property which I was given by way of settlem During the lifetime of husband or after death I did not go to market and generally did not go an I did not know whether my husband executed any Will. He did not use to take any advice f property or any other matter. He used to take advice from his eldest son. He did not use to take any advice f property or any other matter. He used to take advice from his eldest son. The papers of my hu remain with Sekhar. All papers used to remain with him because he used to supervise. My trust him. I did not make any signature on the Will about which Sekhar has told. " (55) DESPITE the valiant attempt by the four younger sons to resurrect their claim made by th had countered it with an avalanche of documents, the mother could not extricate herself. At th not consented to mutation in Kalipadas name consequent upon the 1972 decree, she had au she had made no attempt either to deny any authority or question the conduct of what was whoever she had authorized. If she did not venture out, as she maintained, her affairs mus with her authority and consent. Hemlatas admission of her husband being in complete properties during his lifetime pricked the bubble of fraud that she had made around Kalipad suit. (56) THE unquestionable principles laid down in the judgments cited on her behalf cannot pro illusory claim. The learned Judge has examined the documents on record. No case has been to reassess such material. Even if we accept that the significance of Suvendu and one of witness to the sale deeds of 1977 is undermined by the principle that attesting witnesses are of execution and not accountable for the contents of the document, there is evidence of three Sekhar having direct knowledge of the earlier decree. The certified copy of extracts from Contai Municipality dated February 20, 1988 and exhibited lists, Chandra Nath, Rup Nath a applicants seeking mutation of a property. The reason given by the applicants was that they property under a will. The only Will that has been referred to in the proceedings is one o although unprohibited but said to have been jointly executed by Kalipada and Hemlata. Imp property arising out of the Will despite their mother being alive, was the admission that the property by virtue of their fathers bequest. There is also a notice issued by the office of the C Municipality on June 2, 1988 in connection with an application for mutation of a property said Hemlata, Suvendu, Chandra Nath, Rup Nath and Kalyan Nath. There is also a notice issued by the office of the C Municipality on June 2, 1988 in connection with an application for mutation of a property said Hemlata, Suvendu, Chandra Nath, Rup Nath and Kalyan Nath. Such notice was issued to the executors in the will and copies of such notice were marked not only to the applicants fo Sekhar. (57) IT does not appear that either Hemlata or her sons, who have ultimately prosecuted the were unaware of the earlier decree of 1972 or that there is any material to conclude that actively concealed from them by Kalipada or Sekhar. (58) THE only other limb of Hemlatas challenge was of Suvendu allegedly being a minor at the earlier suit and the passing of the decree therein. Hemlatas evidence on such score is do her youngest son "was born in the month of Sraban in the year 1956". Ordinarily a Bengali the English version of the relevant year. Yet again, the certification of Suvendus age in his cannot be easily discredited. There could have been no reason for Suvendus school being date of birth in anticipation of the falsified date to be used in evidence some three decade referred to Suvendu as a "child" in the deed of gift of September 21, 1956 wherein three o referred to as minors. But it may not be necessary to labour on such details as Suvendu decree. It can not be said that Suvendu was unaware of the decree in view of what has been person attaining majority, he does not question a decree passed against him when he was a m have accepted the same. It is irrelevant as to whether Suvendu was a minor in 1972, but apparent that he made no grievance in respect thereof. (59) THOUGH it has been urged on behalf of the respondent that Hemlatas only remedy wa application under Order 9 Rule 13 of the code, it is possible that a party to an earlier decree m of a subsequent suit. There is no bar to a subsequent suit being instituted on the grou defendants rights against the decree were protected by Order 9 Rule 13 of the Code. There is no bar to a subsequent suit being instituted on the grou defendants rights against the decree were protected by Order 9 Rule 13 of the Code. How mere non-service of the summons would probably be inadequate to found the subsequent suit (60) SIMILARLY, Hemlatas challenge to the earlier decree on the ground that it was erro establish legal principles could not have been considered. If a decision has attained finality, the effect of such decision against him on the ground that it was erroneous. The principles irrespective of the correctness of the decision, unless there was inherent lack of jurisdiction. the earlier decree on the ground that changed circumstances would not alter the effect of immoveable property, was not a challenge touching upon the courts authority to receive o correctness of a decision were to be made a relevant factor to determine its finality, it would le cataclysmic proportions and rob the conclusiveness that finality connotes. (61) THE appeal fails. The decree of dismissal of the suit is affirmed. There will be no order as (62) URGENT xerox certified copy of this judgment, if applied for, be given to the parties o Appeal dismissed.