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2. Probodh Chandra Ghose, the court clerk and Birendra Coomar Ganguly, the cashier and record keeper of the respondent's solicitors filed a joint affidavit in answer on 18th December 1930. In that affidavit, the former stated that the original promissory note had been filed with the plaint before the Master and that in the usual course of practice it was taken back and kept in an almirah in the Solicitor's office. The latter affirmed that he himself had kept it there in the course of his duty. They both affirmed that since the requisitions for inspection from the appellant they had been making diligent searches for it but without success. In answer to this affidavit the appellant filed another affidavit affirmed by him on 5th January 1931. In it he made a definite case that the promissory note wag a forged one and that it was being suppressed by the respondent to prevent detection of the forgery on the false plea that it was missing. On these materials the Chamber application was moved on 13th January 1931. A consent order was passed on that date. The prayers for production of the promissory note and for the dismissal of the suit in case it was not produced were not allowed, on the respondent undertaking to file an affidavit swearing to its loss and to file his account books which were then in the custody of the Criminal Court at Howrah. The respondent fulfilled these undertakings later on. The appellant having got leave to defend the suit filed his written statement on 24th February 1931. He denied having executed the promissory note and suggested that it and another document, a letter evidencing deposit of title deeds marked later on as Ex. N in that suit, had bean forged on two blank sheets of paper containing his signature, such papers having in the past been delivered by him to the respondent for being used in legal proceedings.

4. Kunja preferred an appeal against the judgment of Ameer Ali J. That appeal was heard by Costello and Lort-Williams, JJ., who dismissed the same on 30th July 1934. After delivery of their judgment but before it was signed, some anonymous letters reached the said learned Judges, which contained statements to the effect that the said promissory note and the letter Ex. N, on which the learned Judges had mainly relied upon in dismissing the said appeal, were forgeries. The learned Judges put off signing their judgment and gave him (Kunja) an opportunity to prosecute enquiries and to place further materials before the Court within a month. He later on filed an application in which he gave particulars of the forgery of the promissory note and of Ex. N. An affidavit sworn by one Bhujendra Nath Sen, a former clerk in the office of Messrs, O.C. Ganguly & Co., who had previously sworn to an affidavit to the effect that the promissory note had been received by him from Krishnadhan and had been mislaid in the Solicitor's office, was made an annexure. In this affidavit Bhujendra stated that the promissory note and Ex. N had been forged, that Krishnadhan had admitted before him in detail how and when they were forged and that he himself was an accomplice of Krishnadhan in the matter of the suppression of the original promissory note. This application was refused on the ground that it was filed beyond the time granted and the judgment was signed. Kunja thereafter filed an application for review on the ground that he had discovered new and important evidence which would show that the promissory note and Ex. N had been forged. The additional evidence which was attempted to be introduced was to be the evidence of the self-same man Bhujendra. This application for review was rejected in 1939. The learned Judges in rejecting the application for review observed that if the additional evidence intended to be produced was prima facie credible they would have granted the application for review and would have afforded Kunja an opportunity to place that evidence at the new trial. But as Bhujendra was a self-convicted perjurer whose testimony could not be relied upon, they refused to admit the application for review.

5. When the decree so passed by this Court was sought to be executed in the Court of the Subordinate Judge at Howrah, Kunja filed this suit, in which this appeal arises, in that Court in the year 1938. The principal point is whether the suit is at all maintainable. As we hold in agreement with the learned Subordinate Judge that it is not, we do not enter into other questions canvassed before him. In fact we did not hear any of the parties on the other questions. For deciding the question of the maintainability of the suit the plaint will have to be examined in some detail, keeping in view the facts which we have recited above and about which there cannot be any possible dispute. In the plaint the plaintiff admits that his case in the suit brought to enforce the promissory note was that the latter was a rank forgery and that he had led evidence to prove that it was so. He admits that this Court granted a decree in favour of the defendant, though the promissory note was not produced on a false plea that it was missing. After making this statement he makes the general allegation that this Court was "misled by the fraud of the defendant." The averment thus made only amounts to the fact that Krishnadhan had managed to get a decree on a false claim by producing perjured evidence. This is all that is contained in para. 9 of the plaint. In paras. 10 and 11 he states that after the judgment of Costello and Lort-Williams JJ. he started enquiries, after the anonymous letters received by the said learned Judges had been shown to his Solicitor by the Registrar of this Court, and as a result of those enquiries he got definite information regarding the fraud from Bhujendra who gave him a signed statement. The information given by Bhujendra was what was embodied in the affidavit of Bhujendra which the learned Judges had before them when the application for review was moved and on which they commented in their order. In para. 13 he specifies the heads of fraud which according to him entitled him to reopen in the suit the final decree passed against him. At the end of sub-para, (i) he makes the statement that there was a premeditated contrivance whereby the defendant in conspiracy with Bhujendra and others managed to keep the plaintiff and the Court in ignorance of the real facts of case and obtained a decree by that contrivance.

6. What this "conspiracy" and "contrivance" were are indicated in the other sub-paragraphs of the said paragraph. A summary of the said sub-paragraphs can be made as follows : In 1927 Krishnadhan became displeased with him and formed the idea of putting him in trouble. In that year he called in his aid the services of a forger and had his signature forged on two blank sheets of paper. Bhujendra was thereafter prevailed upon by him to type on those two sheets the body of the promissory note and of the letter of deposit of title deeds (Ex. N). The promissory note was filed with the plaint but was taken back and was suppressed on a false plea that it had been mislaid thereafter, the object being that if it had been produced in Court the forgery would have been discovered at once. By reason of the false affidavits filed in the suit suspicions that would have otherwise arisen from the non-production at the hearing of the original promissory note were allayed and his solicitor and counsel were "thoroughly deceived"; the Court was intentionally misled on the wrong track and was induced to pass a decree on the basis of the admission contained in the fabricated letter of deposit (Ex. N). Bhujendra's mouth was shut by reason of an affidavit which the defendant caused him to swear and file in Court. The defendant thus got a decree on a false claim known to him to be false by leading false evidence. The evidence in support of his case was led on three points, namely (1) that Krishnadhan had asked Kunja to depose falsely for him in a case and on his refusal there was a heated discussion, (2) that the promissory note was forged and that Krishnadhan and Bhujendra admitted the forgery in the presence of some of the clerks in the office of Messrs. O.C. Ganguly & Co., (3) that the story of the loss of the original promissory note was a myth, Krishnadhan's son having taken it from the Solicitor's office after it had been taken back from Court.