JUDGMENT Achintya Malla Bujor Barua, J. - Heard Ms. B Devi, learned counsel for the appellants. Also heard Mr. N Dhar, learned counsel for the respondents. 2. The respondent plaintiffs instituted T.S No.81/1994 in the Court of learned Munsiff No.1, Hailakandi, amongst others, with the following prayers: wxyz "(a). That the exparte decree and judgment obtained by the defendant No.2(in collusion with the defendant No.1, on the strength of disputed false and fabricated hand notes) on 29.04.1988 in M.S No.3/88, disposed of in the court of Munsiff No.1, Hailakandi, through mis-representation & false statements, is void, ineffective, fraudulent, collusive and cancelled w.e.f. the date of decree along with the said false hand notes dated 08.05.85 and 16.07.85 respectively. zyxw wxyz (b). The auction purchase and sale conducted on 19.01.80 and the sale certificate on 03.04.91 in M.Ex.Case No.5/88, pending in the court of M.No.1, Hailakandi and the auction purchase certificate obtained by the defendant No.1 in collusion with the defendant No.2 is void, in effective, fraudulent, collusive and cancelled w.e.f the date of purchase and issue of certificate/confirmation of certificate etc. zyxw wxyz (c). That the plaintiffs are the exclusive owners and possessors over the lands mentioned in schedule below and further declaration that the defendant No.1 and 2 have got no right, title and possession over the S.L." zyxw 3. For the purpose of the present appeal, we deem it appropriate that the other prayers would not be relevant for the present. 4. Paragraph 1 of the plaint is as follows: wxyz "1. This is a suit for cancellation of collusive and fraudulent exparte decree & judgment obtained by the defendant No.2 (in M.S. No.3/88 on 29.04.88 disposed of in the court of Munsiff No.1, Hailakandi) through mis-representation, false statements and suppression of summons, notice etc. and on the strength of false, fake and fabricated hand notes dated 08.05.85 and 16.07.85 respectively, prepared by the defendant No.1 in collusion with the defendants No.2 & 3 and for cancellation of said false & fabricated handnotes, and for the cancellation of fraudulent and collusive auction purchase and sale dated 19.01.90 & 22.02.90 and the certificate obtained by the defendant No.1, on 03.04.1991 in M.Ex. Case No.5/88 respecting landed property of the plaintiffs without their knowledge and its connecting subsequent orders." zyxw 5. Case No.5/88 respecting landed property of the plaintiffs without their knowledge and its connecting subsequent orders." zyxw 5. From a reading of paragraph 1 of the plaint, it is apparent that the plaintiffs had instituted the suit for setting aside the ex-parte decree and judgment in M.S. No.3/1988 on the ground that the money decree was obtained on the strength of two hand notes dated 08.05.1985 and 16.07.1985 which were false, fake and fabricated. In paragraph 4, it was reiterated that the defendant No.1 with a view to fulfill his evil desire prepared the two false and fabricated hand notes in collusion with the other defendants by showing the dates of its execution to be 08.05.1985 and 16.07.1985 respectively. Consequent thereof was the prayer (a) for setting aside the judgment and decree dated 29.04.1988 in MS No.3/1988 on the ground of it having been obtained by fraud and prayer (b) for setting aside the auction purchase and sale conduct of 19.01.1980 on the ground that the sale certificate dated 03.04.1991 was in respect of M.Ex. Case No.5/1988 which was for execution of the decree dated 29.04.1988 in M.S.No.3/1988. 6. The prayer for declaration of ownership and possession of the plaintiffs over the scheduled land appears to be a prayer independent of prayer (a) and (b) which relates to the judgment and decree of 29.04.1988 in MS No.3/1988 to have been obtained by fraud. 7. The defendants in their written statement in paragraph 10 make a general denial that it is not a fact that the decree passed in MS No.3/1988 was a fraudulent and collusive decree. In the trial, amongst others, the issues framed were: wxyz Issue No.5: Whether the plaintiffs have right title and interest over the suit land. zyxw wxyz Issue No.7 : Whether the defendants No.1, 2 and 3 obtained the ex-parte decree in MS No.3/1988 against the plaintiffs fraudulently, suppressing the service of summons. zyxw 8. By the judgment dated 30.09.1999 of the learned Civil Judge, Junior Division No.1, Hailakandi, the issue No.5 as regards the right title and interest of the plaintiffs over the suit land was answered against the plaintiffs by merely providing that the evidence on record as regards, the title of the plaintiffs over the suit land could not be properly traced out. But as regards the issue No.7 as to whether the decree in M.S.No.3/1988 was obtained by fraud by suppressing the service of notice on the defendants therein, it was decided conjointly with issues No.6 and 8. By referring to the evidence of PW-5, the process server, a conclusion without any reasoning was arrived that the summons were duly served. 9. Being aggrieved the plaintiffs carried an appeal before the learned Civil Judge Senior Division, Hailakandi being TA No.3/2000 which was given a final consideration by the judgment dated 24.12.2002. 10. Upon going through the appellate judgment, it is apparent that the issue No.5 whether the plaintiffs have right title and interest over the suit land was not discussed at all and no finding thereof was also arrived at. As regards the issue No.7 where the defendants No.1, 2 and 3 had obtained the ex-parte decree in M.S.No.3/1988, fraudulently by suppressing the service of notice on the summons, the learned appellate court arrived at its conclusion that from the evidence of the PW-5, the process server, it is revealed that the summons were not duly served on the defendants No.2 and 3 therein, namely, plaintiffs No.1 and 2 in the present suit. In doing so, the learned appellate court took note of the fact that in the auction sale which is assailed in prayer (b) of the plaint, one Abdul Khaleque was the beneficiary of such auction sale. The learned appellate court discussed in detail the evidence of PW-5, the process server. The learned Court had taken note of that in his evidence the PW-5 has stated that the signature of the plaintiff in M.S. No.3/1988 who were personally known to him, were obtained by taking his thumb impression on the back side of the summons and thumb impression of the plaintiffs of M.S. No.3/1988 was marked as exhibit 31(4). It was also taken note of that in cross, the PW-5 had stated that he met the defendant No.1 at his residence for the purpose of serving the summons, but he refused to receive it. It was also taken note of that in cross, the PW-5 had stated that he met the defendant No.1 at his residence for the purpose of serving the summons, but he refused to receive it. It was further taken note of that PW-5 had categorically deposed that when he tried to serve the summons on the defendants No.2 and 3 of M.S. No.3/1988 in their house, they were found absent, and, therefore, he served the summons of defendants No.2 and 3 of M.S No.3/1988 on their cousin brother i.e., Abdul Khaleque who happened to be the son of their uncle. 11. The learned appellate court also took note of that it was the same Abdul Khaleque who was the beneficiary of the auction sale related to prayer (b) in the plaint and on the other hand, the decree in M.S.No.3/1988 was obtained by serving the summons on behalf of the defendants No.2 and 3 on Abdul Khaleque. Accordingly, the learned appellate court arrived at its conclusion that the judgment and decree in MS No.3/1988 was obtained by means of fraud in respect of service of notice on the defendants No.2 and 3 therein, meaning thereby, the plaintiffs No.2 and 3 in the present suit. 12. We have verified the evidence of PW-5 in original in vernacular and have noticed that PW-5 in fact, had stated that he had obtained the thumb impression of the plaintiffs of MS No.3/1988 on the back side of the summons which was exhibit 31(4). He had also deposed in cross that in respect of defendant No.1 of MS.No.3/1988, he had refused to accept the summons and, therefore, it was served under Order 5 Rule 17 by hanging the notice in a conspicuous place where the defendant No.1 resided. In respect of defendants No.2 and 3 they were not found in their residences. The notice was accordingly served on Abdul Khaleque, where we have already taken note of that he was a beneficiary on the auction sale on the prayer (b). 13. In the circumstances, one of the substantial question of law framed in this second appeal is as to whether notices on the defendants No.2 and 3 in M.S. No.3/1988 (plaintiffs 1 and 2 in the instant suit) were duly served or not or a fraud was committed in the service itself which vitiated the entire proceeding. 14. 13. In the circumstances, one of the substantial question of law framed in this second appeal is as to whether notices on the defendants No.2 and 3 in M.S. No.3/1988 (plaintiffs 1 and 2 in the instant suit) were duly served or not or a fraud was committed in the service itself which vitiated the entire proceeding. 14. From the evidence of PW-5, it is apparent that atleast in respect of the defendants No.2 and 3 of M.S. No.3/1988 (plaintiffs No.1 and 2 in the instant suit), the summons were served on Abdul Khaleque and it is the same Abdul Khaleque who subsequently took the advantage of the fraudulent judgment and decree and was a beneficiary of the auction sale which had resulted from the execution of the said decree in the money suit. 15. In view of such evidence which had not been confronted by the respondents (plaintiffs No.1 and 2) the substantial question of law framed has to be answered in favour of the plaintiffs and against the defendants in respect of whether notices on defendants No.2 and 3 of M.S. No.3/1988 was served in a fraudulent manner and as we have arrived at a conclusion that the notices on defendants No.2 and 3 in M.S. No.3/1988 were served in a fraudulent manner, we are of the view that the prayer (a) in T.S No.81/1994 for setting aside the judgment and decree dated 29.04.1988 in MS No.3/1988 is required to be allowed and the judgment and decree dated 29.04.1988 in MS No.3/1988 is required to be declared null and void by setting aside the same. 16. In this respect, reference is made to the pronouncement of the Supreme Court in SP Chengalvaraya Naidu (Dead) Vs. Jagannath (dead) and Others, (1994) 1 SCC 1 wherein in paragraph 1 it is provided that fraud avoids all judicial acts, ecclesiastical or temporal and it is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of law. Such a judgment/decree by the first court or by the highest courthas to be treated as a nullity by every court, whether superior or inferior. 17. Such a judgment/decree by the first court or by the highest courthas to be treated as a nullity by every court, whether superior or inferior. 17. But as regards the other issue being the issue No.5 whether the plaintiffs have ownership and possession over the suit land, we are of the view that neither Civil Judge Junior Division, Hailakandi in T.S No.81/1994 in its judgment dated 30.09.1999 nor the Civil Judge Senior Division, Hailakandi in TA No.3/2002 had decided and pronounced on the said issue except for an unreasoned conclusion arrived at by the learned trial court that the materials do not support the claim for ownership and possession of the plaintiffs. 18. In view of the inadequate decision on the said issue, we remand the matter back to the learned Civil Judge Senior Division, Hailakandi presently to be read as the appropriate Munsiff as the learned District Judge, Hailakandi may allocate for a proper and complete adjudication on the issue No.5 by making it clear that for the purpose, the issue No.7 as regards the sustainability of the judgment and decree dated 01.03.1988 in M.S.No.3/1988 shall not be reopened or further adjudicated. 19. Appeal stands partly allowed. 20. Send back the LCR.