( 1 ) A short question arises in this appeal.

( 2 ) THE appellant was the defendant in a suit for setting aside an ex parte mortgage decree on the ground of fraud and non-service of summons. The plaintiff had previously applied unsuccessfully to have the decree set aside under Order 9, Rule 13 of the Code of Civil Procedure. The only point is whether the present suit is maintainable and whether the findings, on which the learned Subordinate Judge has answered that question in the affirmative and granted the plaintiff a decree, setting aside the previous ex parte decree and reviving the original suit, are sufficient in law for the said purpose.

( 3 ) THE ex parte decree which was sought to be set aside in the present suit was passed in a mortgage suit (T. S. No. 80 of 1945), brought by the present appellant as plaintiff against the present respondent as defendant. The preliminary decree was passed ex parte on April 27, 1945, and It was made final in March, 1946. On September 17, 1946, the present plaintiff who was the defendant in the mortgage suit applied under Order 9, Rule 13 of the Code of Civil Procedure ifi Miscellaneous Case No. 298 of 1946 to have the