The central legal point established in the judgment is the interpretation of the applicability of res judicata in the context of the decision under Order IX, Rule 13, C.P.C and the finding of fact regarding the service of summonses.

JUDGMENT

Greaves, J. - This is an appeal by the Defendants in a suit against a decision of the District Judge of Jessore, dated the 4th April 1922, reversing a decision of the Munsif of the 1st Court at Jhenidah. It will be convenient first of all to state the facts. In the year 1916, the present Appellants instituted in the Court of Small Causes, a suit against the Respondents on a hand-note. A month after the institution of the suit, namely, on the 28th April 1916, the present Appellants obtained an ex parte decree against the Respondents for a gum of Rs. 59-8 as. The case of the Respondents is that they knew nothing of that decree until the 7th of June 1919, when certain moveable articles of theirs were seized in execution of the decree. Thereupon the present Respondents applied under Order 9, Rule 13, C.P.C., to set aside the ex parte decree, contending that summonses had been suppressed. These proceeding a were contested, but the present Respondents failed in their application, and it was thus held that summonses were duly served on the present Respondents. As a result of the Respondents' failure in these proceedings, they, on the 15th January 1920, instituted the present suit to set aside the ex parte decree on the grounds that the claim was a false one and the decree was obtained by perjured evidence. We have the plaint before us and it also appears that the Respondents contended in the suit that they had never been served with summonses, and that a falsa return of service was made by the process-server at the instance of the present Appellants. The case came on for hearing before the Munsif, who decided, as I have already stated, on the 29th November 1920, adversely to the present Respondents. He states with regard to the issues Nos. 5 and 6, which were the issues with regard to service and other matters, that it was not pressed before him that any fraud had bean practised on the Court. The learned District Judge has reversed the decision of the Munsif and hence this appeal.

2. The reversal of the Munsif's decision was arrived at, so far as I can see, on two grounds, firstly, the summonses were not served and the learned District Judge finds that the Plaintiffs knew nothing about the ex parte case; and secondly, on the ground that the claim was fraudulent. The learned District Judge's finding is that the hatchitta upon which the original suit of the Appellants was based was made out in the absence of the Respondents and that it was an untrue document. So far as the second ground of the decision is concerned, there has been some conflict of authorities in this Court: but we think the balance of the authority is that it is not open to raise pleas of this nature, if the suit has been decreed after contest, for if the suit has been decreed ex parte and it is established that summonses were served on the Defendants. Numerous authorities have been cited before us, but it is not. I think, necessary to refer to them. As I have already stated, the balance of authority is in favour of the contention of the Appellants before us that under the circumstances which I have stated no such suit lies. This is in accordance with a decision in the case of Mahomed Gulab v. Md. Sulliman [1894] 21 Cal. 612 of Sir Comer Petheram and Mr. Justice Ghose. As I have already stated, this decision has not been uniformly followed, but the balance of authority is in favour of the correctness of that decision. We therefore come to the first ground of the decision of the District Judge, namely, that there was no service of summonses upon the present Respondents. In this appeal it is urged before us that that contention is not open to the Respondents, having regard to the decision in the proceedings under Order IX, Rule 13 to which I have already referred, and that is the main question which arises for our consideration. It is urged on behalf of the Appellants that having regard to that decision, and upon the authorities which have been cited to us and upo