In the High Court of Kerala at Ernakulam 13th December 1956 P r e s e n t The Hon'ble Sri M.s. Menon, Judge, and The Hon'ble Sri T. K. Joseph, Judge. A. S. No. 23 of 1955 (T-C) 0.S.No. 30 o6£ '1124 of Mavelikara District Court. Appellant - Mathai Ouseph of Manamprathu Puthenveettil, Kutte.speroor uri, Mannar Pakuthy - plaintiff (died) legal heirs. 2. Cuseph Mathai of Manamprathu, Puthen- veettil, Kuttemperoor Muri, Mannar Pakuthy. 3. Ouseph Abraham of do. 4. Ouseph Mathew of do. Impleaded as additional appellants Vide order on C.N.P. 1509/55 dated 14-8-56. By advocate Sri T.K. Kurien Respondents - l. Velayudhan Pillai Narayana Pillai of Maratte- thu Padeettathil, Kulanjikarma Muri, Mannar Palruthy - 1st defendant. • Sankaran Nair, Velayudhan Nair also called C. V. Velu Pillai, of Chudukattilaya Palakka Vadakkethil, Tuttemperoor Muri, Mannan Pakuthy 2nd defendant. o.1 by advocate Sri A.s. Narayanan Asan. Thi appeal coming on for final hearing on 12-12-1956 and having stood over for consideration till this day the court delivered the following 4,p• p • ,, Judgment /elutnU } y • "Zov) ¢ This is an appeal by the plaintiff in o.s.No. 30 of 1124 of the District Court of Navelikara. He died subsequent to the filing ·of the appeal and his heirs have been impleaed as addil.tional appellants, 2 to 4, in pursuance of the order in C.Mi.P.i. 1509 of 1955 dated the 14th August 1956. 2. The present suit6, 0.S.4o. 30 0f 1124, is a suit to set aside the ex parte decree in O.S.No. 45 of 1112 of the Dis- trict Court of Quilon. The plaintiff had filed a petition to set aside the ex parte decree on the ground of fraud in the servi~e of sununons. That petition, it seems, was dismissed by the trial court and the dismissal confirmed by the High Court of Travancore in C.M.A.No. 38 0f 1123. 3. Issue No.4 of the seven issues raised is: Whether the order rejecting the application to set aside exparte decree operates as res judlcata?". The lower court quoted the following passage from XXIII T.L.J.132: ' "If the very fraud that is set up in the suit was set up in the application to set astide the ex parte decree and ' the court after going into the question of fraud rejected the application, the suit would be barred as res judicata unless the fraud was of 'such a nature that it could not properly come within the scope o-f inquiry U..Yider Order IX, r. 13 of the C.P.C.". and held that: "the present suit is clearly barred by the rule of res judicata". 4. Even the petition filed to set aside the ex parte decree was not before the court and the Judge was 0Very much in the posit- imn of the Privy Council in I.L.R. 28 Calcutta 471 wherein they said: "We have nothing before us, but the bare fact that the plaintiff endeavoured to get an ex parte decree set aside under s. 108 0f the Code of Civil Procedure, under which the Court may try whether the summons was served or whether the plaintiff was prevented by any sufficient cause from appearing". No documents have been marked or oral evidence adduced in this case. 5. Definite evidence is certainly required before a conclusion can be reached as to whetrnr the present suit is barred by res judicata or not and we have come to the conclusion that we should set a.side the decree and remand the case to the trial court for fresh disposal according to law after giving the parties an oppor- tunity to adduce all relevant evidence. Judgment accordingly. 6. The costs of the appeal will be costs ir the cause. 7. The court-fee paid on the meruopndum of appeal will be refunded to the appellants as provided by section 10 (b) (1) of the Travancore-Cochin Court Fees Act, 1125. Sd./%.s. Menon, Judge d./T.. Joseph, Judge. (True copy)