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 of the trial court and dismissed the application under Order 9 Rule 13 CPC. Respondent/plaintiff had filed an SLP before the Supreme Court but the same was dismissed. Therefore the ex parte judgment and decree dated 27.11.1997 became final.

3. The ex parte judgment and decree dated 27.11.1997 pertains to a suit for possession filed by the appellants/defendants against the respondent/plaintiff being suit No.305/1987. The suit property bearing no.125-C, Pocket A-2/B, Paschim Vihar, New Delhi had been allotted to the father of the appellants/defendants by the DDA vide allotment letter dated 10.1.1983. Possession of the same was taken from the DDA on 10.3.1984. Appellants/defendants’ father had handed over keys of the flat in question to one Sh. Surjan Singh (brother-in-law) for looking after the flat. The father of the appellants/defendants died in unfortunate circumstances as he was murdered while travelling in a train. The keys of the flat were handed over by Sh. Surjan Singh to the respondent/plaintiff to get repairs done. Respondent/plaintiff however illegally occupied the flat and since he refused to vacate, the suit for possession came to be filed. Respondent/plaintiff had relied upon fraudulent and fabricated documents being agreement to sell, power of attorney etc allegedly executed in his favour dated 28.9.1984 by the father of the appellants/defendants, and as per which respondent/plaintiff claimed ownership of the flat. As already stated above, this suit was ultimately decreed ex parte against the respondent/plaintiff vide ex parte judgment and decree dated 27.11.1997 and the application of the respondent/plaintiff under Order 9 Rule 13 CPC was dismissed till the Supreme Court.

4. The respondent/plaintiff did not rest there and filed objections in execution. These objections were dismissed by the executing court vide its order dated 3.6.2006 and appeal against the said order was also dismissed by the appellate court on 1.12.2006.

5. By the application filed by the appellants/defendants under Order 7 Rule 11 CPC in the present suit it was pleaded that the judgment in the earlier suit bearing no.305 of 1987 operated as res judicata against the respondent/plaintiff under Section 11 CPC taken with the fact that the suit was barred under Section 47 CPC inasmuch as even the objections filed by the respondent/plaintiff were dismissed and the appeal of the respondent/plaintiff against the order dismissing objections was also dismissed as per details already stated above. Trial court allowed the application under Order 7 Rule 11 CPC and held that the suit was barred by the provisions of Sections 11 and 47 CPC noting that no particulars of fraud were pleaded in the plaint.

6. The appellate court has allowed the appeal by the impugned judgment and dis