ORDER
Nagendra Rai, A.C.J.
1. The plaintiff is the petitioner against the order dated 25.1.2002, passed by Munsif-I, Vaishali, in Title Suit No. 102 of 2000 holding that the suit was not maintainable in exercise of the power under Order XIV, Rule 2(2) of the Code of Civil Procedure (for short ‘the Code’).
2. The plaintiff-petitioner filed the present suit for a declaration that the decree passed in earlier Title Suit No. 57 of 1971 filed by the defendant-opposite party, was not binding upon her as the decree was obtained by fraud and she should not be dispossessed on the basis of the said decree.
3. It is an admitted position that the defendant-opposite party filed Title Suit No. 57 of 1971 in the Court of the Sub-ordinate Judge, Vaishali, for specific performance of contract on the basis of, an agreement dated 26.11.1969 executed by mother and brother of the plaintiff for sale of land. In the said suit, the plaintiff of the present suit was also made as a party and in which a decree was passed against the defendants of that case including the plaintiff. An appeal was filed in this High Court being F.A. No. 27 of 1986 by the purchasers who were defendant-3rd party in the said suit. The plaintiff of this suit was also a party in the aforesaid appeal as respondent and a Cross-Appeal was filed on her behalf, her mother and brother. The appeal and the suit both were dismissed.
4. The case of the plaintiff-petitioner is that though she was a party in the aforesaid suit, but the summons was not served upon her and she has no knowledge of the suit for appeal and with this allegation she filed an application under Order IX, Rule 13 of the Code, which was dismissed, against which she filed an appeal, which was also dismissed and the Civil Revision filed against that in this High Court was also dismissed on the ground that the application under Order IX, Rule 13 of the Code was not maintainable and it was observed. “On merit whether the petitioner was a party in the agreement, on the basis of which the decree was passed, cannot be considered by this Court and if such grievances are there, the petitioner may choose the appropriate forum for redressal of her grievances”. Thereafter, the plaintiff filed the aforesaid suit with the said relief.
5. The defendant-opposite party challenged the maintainability of the suit under Order XLI, Rule 2, sub-rules (2) and (3) of the Code that the plaintiff as well as her other family members appeared and contested Title Suit No. 57 of 1971 and they were also party in the First Appeal filed by purchaser-defendant third party, in which a joint Vakalatnama was filed on behalf of the appellant (present plaintiff) and other family members and a Cross-Appeal was also filed and after hearing the appeal was dismissed by the High Court, which was never challenged. Thereafter, he levied an execution case. An application under Order IX, Rule 13 of the Code was filed by brother of the plaintiff and subsequently by the plaintiff also, which ended in dismissal as stated above. Thus, the suit on that very ground, on which the application under Order IX, Rule 13 of the Code was filed, was not maintainable.-
6. The Court below, after having considered the matter, dismissed the suit as not maintainable.
7. Learned counsel for the petitioner submitted that she has challenged the earlier judgment and decree on the ground of fraud. The suit was maintainable and the Court below has committed a serious error of record in holding that the suit was not maintainable on the ground of dismissal of the application under Order IX, Rule 13 of the Code ignoring the fact that the Court has already held earlier in the said civil revision that the application under Order IX, Rule 13 was not maintainable on merit and the plaintiff can pursue the remedy as available in law.
8. Learned counsel for the defendant-opposite party, on the other hand, submitted that the earlier suit was contested by the plaintiff and others and her case of non-service of summons and fraud was negatived in the application under Order IX, Rule 13 of the Code and it was found that she had appeared and, accordingly, the application under Order IX, Rule 13 of the Code was held to be not maintainable and, thereafter, the subsequent suit was held to be not maintainable.
9. In a case of ex parte decree, the defendant has four options, namely, (i) to file an appeal under Section 96 of the Code or (ii) to file a review application or (iii) to file an application under Order IX, Rule 13 of the Code or (iv) to challenge the decree on the ground of fraud. But in view of the explanation appended to Order IX, Rule 13 of the Code (inserted by Act 104 of 1976), if once the defendant has availed the remedy of appeal against an ex parte decree and the appeal has been disposed of on merit, no application under Order IX, Rule 13 of the Code is maintainable. Similarly, if an application under Order IX, Rule 13 of the Code has been disposed of where a plea was taken that fraud was practised in not serving the summons and if that case is negatived by the Court while disposing the application under Order IX, Rule 13-of the Code, then the subsequent suit on the same ground is not maintainable. It is clarified that the fourth remedy of suit, as mentioned above, does not apply to set aside an ex parte decree only on the ground of non-service of summons unless it is alleged that the ex parte decree was obtained by fraud by the plaintiff. But, as stated above, when an application under Order IX, Rule 13 of the Code, has been filed on the ground that there was a fraud on the part of the plaintiff in obtaining an ex parte decree and if that case is negatived, then the suit on the same ground is barred by res judicata. In this connection, reference may be made to a Division Bench judgment of this Court in the case of Janki Gope v. Jangbahadur, reported AIR 1935 Patna 458, wherein it has been held that if a decision has been rendered in an application under Order IX, Rule 13 of the Code that summons was duly served, then no suit will lie on the ground that the summons has been fraudulently suppressed as the same operates as res judicata.
10. In this case, in the application under Order IX, Rule 13 of the Code, both the Courts below have found that the summons was duly served and there was no fraud and the revisional Court also agreed with the finding and held that in view of the fact the summons was duly served the application was not maintainable under Order IX, Rule 13 of the Code and the challenge on the same ground by filing a separate suit, thus, is not maintainable. The plaintiff’s case appears to have been a device to harass the defendant as the suit filed for specific performance of contract was decreed by the trial Court, upheld in appeal by the High Court and, thereafter, the application under Order IX, Rule 13 of the Code filed by the brother as well as by the plaintiff had also been rejected and the only ground that there was suppression of summons, which case has already been negatived in a full fledged enquiry under Order IX, Rule 13 of the Code, is not sustainable in the eye of law. In my opinion, the view taken by the Court below that the suit is not maintainable appears to be correct one.
11. The observation made by this Court in the earlier Civil Revision does not help the petitioner because she has filed the suit on the ground that the summons was not served, whereas, the observation was that she might choose another forum with regard to the question as to whether she was a party to the agreement to sell or not.
12. In the result, there is no merit in this Civil Revision and it is, accordingly, dismissed.