Chiranjib Lal Chowbey vs Musammat Doultea

This appeal arises out of a suit to set aside a decree obtained in Suit No. 4 of 1906 before the Subordinate Judge of Rajmehal. The reliefs prayed for are:--

(a) that it be declared that the aforesaid ex parte decree of the Subordinate Judge is fraudulent and collusive, and as such, is fit to be set aside;

(b) that it be adjudicated that the defendant''s claim upon the usufructuary mortgage has been fully satisfied and that there is nothing due;

(c) that the plaintiff is entitled to costs of the suit and to any other relief or reliefs that the Court thinks proper.

The lower Courts have concurred in holding that the decree in Suit No. 4 of 1906 was vitiated by fraud in the first instance owing to the fraudulent claim to more than what should have been decreed under the Sonthal Parganas Regulation of 1872, secondly, for fraudulent suppression of the summons, and thirdly, for suppression of the sale proclamation; and upon these findings have re-tried Suit No. 4 of 1906 and made a decree therein for Rs. 402 instead of Rs. 1,200 as was claimed in the plaint in that suit.

Against that decree the defendant appeals, and the grounds urged are: that there was no fraud in the plaint of Suit No. 4 of 1906; and (2) that the only act of fraud in prosecuting the suit itself was the suppression of summons, and that in accordance with the decision in Narsingh Das Vs. Rafikan, , no suit would lie to set aside a decree solely on the ground, that summons had been suppressed; and (3) that if the lower Court be permitted to disturb the decree of 1906 at all, a decree should be made for Rs. 252, the amount spent on the repairs of the property, with the direction that the appellant be allowed to remain in possession of the property until the principal sum advanced be paid off.

The first ground turns upon the construction of section 6 of Regulation III of 1872. It is urged on behalf of the appellant that this section does not apply to usufructuary mortgages, but the section as worded applies to all debts and liabilities. A usufructuary mortgage is clearly a debt or a liability. There was originally a specific clause 10 of Regulation XV of 1793, whereby it was expressly enacted that when taking an account upon a usufructuary mortgage it should be held that when the profits of the property have amounted to the principal sum advanced, it should be decreed that the mortgage had been extinguished. It seems to me that Regulation III of 1872 has substituted a general section whereby the interest to be paid on any debt or liability should not exceed the principal sum advanced.

Upon the second ground taken that no suit would lie to set aside this decree, it appears to me that the facts are not very distinguishable from the case decided in 5 CWN 757 (Privy Council) by the Judicial Committee. There it was held that where summons had been suppressed and the sale held fraudulently, section 108 of the old CPC was no bar to the maintenance of the suit to set aside the decree made.

Upon the last ground taken it is clear that the Courts below were not dealing with the suit of 1906 and had no jurisdiction to make a decree in that suit upon the application of any party who was not a plaintiff in that suit. The relief granted by the Courts below must, therefore, be modified. What the plaintiff in the suit before us asks is for an order that it be declared that by enjoyment of the usufruct the whole sum advanced has been repaid. It has been found as a fact that Rs. 402 still remain due on the property; therefore, upon the second ground of relief asked for it will be decreed in this suit that upon paying into Court the sum of Rs. 402 by the 1st July 1917 the plaintiff will be entitled to receive back her property free from all encumbrances. Failing that payment by that date the right to redeem the mortgage will be permanently extinguished.