JUDGMENT
M.M. Kumar, J.
1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity ‘the Code’) against concurrent findings of facts recorded by both the Courts below repelling their challenge to the ex-parte judgment and decree dated 26.5.1981 passed against them. The legal question which has been considered by both the Courts below is whether the ex-parte decree could be challenged by way of filing a separate suit or the only remedy of the plaintiff-appellants was either to file an appeal under Section 96 or an application under Order IX Rule 13 of the Code. The afore-mentioned question has been answered by both the court below against the plaintiff-appellants holding that a suit was not competent to challenge an exparte-decree particularly when the plaintiff-appellants were party to the earlier exparte decree.
2. Brief facts necessary for the disposal of the instant appeal are that the plaintiff-appellant filed a civil suit No. 534-1 dated 29.1.1990/9.3.1999. The principal challenge in the civil suit was that the defendant-respondents 1 to 4 (represented by their L.Rs) had obtained an ex parte judgement and decree from the Civil Judge on 26.5.1981 without apprising the Civil Court the true and correct facts. According to the plaintiff-appellants, defendant respondents had obtained a decree by mis-representating the order dated 12.4.1967 passed by the Collector in favour of the defendant-appellants on the application made by the defendant-respondents 1 to 4 for purchase of land in their capacity as tenants. It was asserted that infact the order of the Collector was set aside by the Financial Commissioner on 10.8.1970 and the case has been remanded back. It was further claimed that on remand the application filed by defendant-respondents 1 to 4 was infact dismissed on 3.9.1980 which had attained finality. The stand taken by the defendant-respondents was that beside the fact that the suit was time barred it was claimed that the suit was not maintainable. It was further asserted that Dulla Ram and Gopi Ram who were sons of Sodagar Ram were owners of the suit land and defendant respondents 1 to 4 were the tenants under the big land-owner namely Mathura Dass who had sold the suit land to Dulla Ram and Gopi Ram. It was further claimed that after redemand by the Financial Commissioner, the application of defendant-respondents 1 to 4 for purchase of land in their capacity as tenants was never dismissed and a total mis-representation of facts have been made by the plaintiff-appellants. Elaborating their stand further, defendant-respondents claimed that mutation No. 1057 was sanctioned in their favour on 17.8.1989 in the presence of the plaintiff-appellants (who are now represented by their legal heirs), which was based on the civil court decree dated 26.5.1981. On the crucial issue as to whether the judgment and decree dated 26.5.1981 was null and void both the Courts have held that the remedy of the plaintiff-appellant was either to challenge the judgment and decree before the appellate Court by filing an appeal under Section 96 of the Code or to file an application for setting aside the order of exparte. It is appropriate to mention that the judgement and decree dated 26.5.1981 was passed in Civil Suit No. 236 MS instituted on 17.9.1979 and plaintiff-appellants Ham Raj and Khushi Ram ( now represented by their legal heirs.) were arrayed as party defendants. They were validly served but preferred not to appear. Hence they were proceeded exparte. The learned Lower Appellate Court upheld the contention of the defendant-respondents 1 to 4 holding that no suit was maintainable for challenging exparte decree by observing as under:-
…as such, it was for the plaintiffs to prove that they have not been validly served in that suit. Otherwise also, if the plaintiffs were arrayed as defendants in that suit titled Khushal Singh v. Hans Raj etc. and wanted to challenge that judgment and decree passed on 26.5.1981, then two remedies were available to the plaintiffs i.e. firstly by filing appeal against the judgment and decree and secondly by filing application under Order 9 Rule 13 C.P.C. for setting aside that judgment and decree. When judgment and decree had come in their knowledge, but that judgment and decree cannot be challenged in a separate suit by the plaintiffs. If plaintiffs were not parties in that suit and the judgment and decree had affected their interest, then it could be said that the plaintiffs could have challenged that decree by way of separate suit, but plaintiffs being parties in that suit are not entitled to challenge that decree by way of separate suit….
3. The other contention that the order passed by the Financial Commissioner on 3.9.1980 has been suppressed and there was mis-representation before the Civil Court while obtaining judgment and decree 26.5.1981 has also been rejected by both the Courts below. In that regard, the observation of the lower appellate Court reads as under:
If the defendants had filed the suit after the dismissal of their purchase application, then the contention of the plaintiffs would have carried some weight but the defendants filed this suit even before the dismissal of their purchase application, because application of the defendants was dismissed as contended by the plaintiffs on 3.9.1980 whereas the defendants filed the suit on 17.9.1979 as is observed at page 13 of the impugned judgment i.e. much before the dismissal of the purchase application of the defendants. As such, it could not be said that the defendants were having knowledge about the dismissal of their purchase application or whether the defendants contested the purchase application after filing of the suit or not. It is admitted fact that no appeal has been filed against the order dated 3.9.1980 whereas previously litigation about the purchase application was contested upto the Financial Commissioner level.
4. It is also appropriate to mention that the lower appellate Court took into consideration the sanctioning of mutation on the basis of judgment and decree dated 26.5.1981. A reference has been made to the order dated 17.3.1989 that mutation No. 1057 was sanctioned in favour of the defendant-respondents in the presence of the plaintiff-appellants Hans Raj and Khushi Ram ( who are now represented by their legal heirs). Thereafter, the plaintiff-appellants filed an appeal which was dismissed by the Collector, Fazika on 21.1.1991 (Ex.Dl). It has also been found by both the Courts below that defendant-respondents 1 to 4 have been continuing in possession of the suit land.
5. Having heard the learned Counsel at some length I am of the opinion that the view taken by the Courts below with regard to challenge of an exparte decree by filing a separate suit is meritorious and deserved to be accepted. It is well settled proposition of law that the principle of resjudicata would be attracted in a case where the question substantial in issue in the earlier case which is sought to be raised in the later suit between the same parties is the same then such a suit would be barred by the provisions of Section 11 of the Code. This principle is based on sound public policy that no person shall be vexed twice for the same cause of action. In the instant case, it has been amply proved that the earlier exparte judgment and decree dated 26.5.1981 was between the same parties and involve the same question of facts. There was no effort made by the plaintiff-appellants to get the decree set aside by filing an application under Order IX Rule 13 of the Code or by preferring an appeal before the first Appellate Court under Section 96. They have allowed the judgment and decree dated 26.5.1981 to attain finality which cannot be reopened by filing a separate suit. Even otherwise it has been found on merit that defendant respondent 1 to 4 had continued in possession and mutation in their favour was sanctioned being mutation No. 1057 in the presence of the plaintiff-appellants. The order was upheld in appeal filed by the plaintiff-appellants by the Collector Fazilka on 21.1.1991, Ex.D1. It has time and again been emphasised by the Supreme Court that in such a situation the only course available is either to file an appeal or an application for setting aside the exparte order under Order IX Rule 13 of the Code. The aforementioned question came up for consideration before the Supreme Court in the case of Bhannu Kumar Jain v. Archana Kumar (2005-2)140 P.L.R. 549 (S.C.) and the observations of their Lordship in this regard read as under:
When an exparte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the exparte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the exparte decree passed by the Trial Court merges with the order passed by the appellate Court, having regard to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the explanation I appended to said provision does not suggest that the converse is also true.
In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an Appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein.
6. In the absence of availing any of these two remedies the plaintiff-appellants are not entitled to raise the issue once again by filing a civil suit because it would attract the application of principle of resjudicata as envisaged by Section 11 of the Code. Therefore, there is no merit in the instant appeal. No question of law warranting admission of the appeal would arise which is sine qua non for exercising jurisdiction under Section 100 of the Code.
7. For the reasons recorded above, this appeal fails and the same is dismissed.