Valmiki J. Mehta, J.

1. This first appeal is filed under Order 43(1)(u) of Code of Civil Procedure, 1908 (CPC) impugning the order of the appellate court dated 23.8.2008 by which the appellate court set aside the order of the trial court dated 19.12.2006 which had allowed the application of the defendants/appellants under Order 7 Rule 11 CPC and rejected the plaint.

2. Respondent/plaintiff filed a suit for challenging the ex parte judgment and decree dated 27.11.1997 against him (in suit No.114/1993) and in favour of the defendants/appellants on the ground that the same was obtained by practicing fraud. The admitted facts however were that the application filed by the respondent/plaintiff under Order 9 Rule 13 CPC seeking setting aside of the ex parte judgment dated 27.11.1997 was firstly dismissed on 23.2.2001. That order dated 23.2.2001 was however set aside by this Court in a revision application by remanding the matter back for recording evidence and thereafter deciding the application under Order 9 Rule 13 CPC. Trial court allowed the application under Order 9 Rule 13 CPC by the order dated 2.7.2002, however this Court in civil revision no.902/2002 set aside the order