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3. In order to see whether the suit is maintainable, we must assume the facts to be as stated; two more facts, which are not mentioned in the plaint, but about which there is no dispute, must be added: those are that the plaintiff applied under Section 108 of the Code to get the ex-parte decree set aside, and also applied under Section 311 to get the sale set aside, and that both applications failed.

4. As we understand the judgment of the Subordinate Judge he would have decided the preliminary issue referred to above in favour of the plaintiff, but for the one circumstance that the plaintiff had applied unsuccessfully to get the ex-parte decree set aside under Section 108 of the Code. He says that in applying under that section the plaintiff adopted the proper, but not the only, course open to him; that there was an appeal against the order rejecting his application, of which he did not avail himself; that the effect of the rejection order was to change the ex-parte decree into a contested decree which the Court had no jurisdiction to set aside, except by way of appeal; and that without setting aside the decree the plaintiff could not get back the property sold in execution of it.

5. It is not and could not be now contended that a suit will not lie to set aside a decree obtained by fraud, nor is it contended that a fraudulent decree, which is obtained ex-parte can only be set aside under the provisions of Section 108 of the Procedure Code. The case of Abdul Mazumdar v. Mohamed Gazi Chowdhry I.L.R. 21 Cal. 605 is an authority that a suit will lie to set aside an ex-parte fraudulent decree, although no endeavour has been made to get the decree set aside and suit revived under Section 108.

6. [549] The contention is that when a person, against whom an ex-parte decree is passed, does apply under Section 108 to have the decree set aside and fails, he cannot afterwards, on the same ground as was put forward in the proceeding under Section 108, bring a suit to get the decree set aside, even if fraud is alleged. It is said, as regards the decree, the only fraud here alleged is in the non-service of the summons, and that it was found in the proceedings under Section 108 that the summons was served, or, at all events, that the plaintiffs had failed to prove that it was not served. We do not understand the learned pleader for the respondent to argue that the question of the service of the summons is in this case res judicata. His argument, broadly stated, is that when two courses are available, and one is resorted to and fails, recourse cannot be had to the other.

8. It is said and correctly that the plaintiff might have appealed against the rejection order under Section 108. All that can be said is that if he had appealed and succeeded there might have been no necessity for the present suit. If this is a valid objection it would apply equally to a case in which a plaintiff had made no application under Section 108, but had at once brought a suit to set aside the decree. The avoidance of unnecessary litigation may furnish some ground for arguing that before a person brings a suit he ought to exhaust the remedy, provided by Section 108, but not that if he fails in his application under Section 108 he is debarred from bringing a suit. The only case cited as a direct authority for the respondent's contention is that of Raj Kishen Mookerjee v. Modhoo Soodun Mundle 17 W. R. 413. There the plaintiff brought a suit to set aside a rent decree obtained under Act X of 1859 on the ground that a confession of judgment, on which the decree proceeded, was not put in by him, but was fraudulently placed on the record by other parties. The plaintiff had applied to the Deputy Collector who passed the decree to revive the suit under Section 58 of the Act on this particular ground, but the Deputy Collector rejected the application, holding that the confession of judgment was not fraudulently obtained. The plaintiff did not appeal as he might have done against the rejection order, and a Division Bench of this Court held that the plaintiff, having a remedy by way of appeal which he did not resort to, was precluded from bringing a suit in the Civil Court to set aside the decree. The ground, on which the decision is arrived at, is not clear, and there is no allusion in the judgment to fraud as the foundation of the suit. The case might be an authority for holding that no civil suit would lie until the remedy provided by Section 58 of Act X of 1859, which is, generally speaking, analogous to the provisions of Section 108 as regards civil suits, was exhausted, in which. [551] event it would apparently conflict with the case of Abdul Mazumdar v. Mohamed Gazi Chowdhry I.L.R. 21 Cal. 605 but it is no authority For the proposition that a person failing to obtain relief under Section 108 is debarred from bringing a suit to get the decree set aside on the ground of fraud. When there is an appeal against a decision the effect of not appealing is that the decision holds good for what it is worth; so far as concerns any other modes of relief available the person not appealing is in no worse position than if he had appealed and failed.