( 1 ) MR. N. C. Shah learned advocate of the appellant has raised two contentions- (1) that a suit to set aside the decree on the ground of fraud in the service of summons is not maintainable; and (7) that on the facts of the case the fraud alleged in the plaint is not proved. Mr. Shah was urged that a suit is not competent to set aside an ex parte decree on the ground that the service of the summons in the suit was improperly effected as a result of which an ex parte order was passed by the court which passed the decree and the only remedy available to a judgment-debtor in such a case would be to make an application to set aside the ex parte decree under Order 9 Rule 13 of the Civil Procedure Code. It has been urged that Order 9 is a self-contained provision to cover all sorts of cases where an ex parte decree could be set aside and it would therefore not be permissible to a litigant to reagitate a cause that has already been elected once by a competent court save by resorting to that provision. It is said that Article 164 of the Indian Limitation Act prescribes a period of limitation of 30 days from the date of the defendants knowledge of the decree in cases where summons is not duly served and therefore there would be no injustice caused to a defendant against whom an ex parte decree is passed if he is not given a right to file a separate suit to set aside an ex parte decree.

( 2 ) REFERENCE has been made by Mr. Shah to some decided cases in this connection where the question of maintainability of a suit to set aside a decree has been considered Mr. Shah has relied on the case of Puran Chand v. Sheodat Rai I. L. R. 29 Allahabad page 212. On a perusal of the facts in that case it will be found that the only real fraud alleged was connected with the non-service of summons and that question was fully gone into and decided by the court in an application under sec. 108 of the Code of Civil Procedure. That case therefore will have no application to the facts of the present case where no such application has been made.

( 3 ) THE next case on which reliance has been placed by Mr. Shah is I. L. R. 37 Calcutta at page 197-Narsingh Das v. Rafikan wherein it has held that A fresh suit would not lie to set aside a decree on the mere ground of non-service of summons though it would be maintainable on the ground of fraud. This case is clearly distinguishable as it will appear from the following observations at page 201 :the mortgage decree which is inter partes is prima facie binding on the plaintiff until it is legally set aside and although she says she came to know of the defendants possession in 1898 and evidently the title which they asserted she has not taken any steps for that purpose. The principle of res judicata is a principle of rest and convenience and not of absolute justice. It may be that the plaintiff was really unaware of the suit and the decree and the sale proceedings were all behind her back but she was bound as soon as she came to know the facts to come to court in the only manner in which the sanctity of a solemn act of court can be impeached She ought to have applied if possible to have the decree set aside under sec. 108 Civil Procedure Code if she complained only of non-service of summons or to have applied for a review on the ground of fraud or brought a regular suit on the ground of fraud if she alleged any. She has done nothing of the kind and pleads ignorance of the suit when challenged by a title sanctified by a Court sale in execution of a solemn decree of the Court. There is no doubt that fraud will re-open and nullify the most solemn acts of Courts of Justice and it has been held in a series of cases that a suit will lie setting aside a decree on the ground of fraud: see Abder Mazumdar v. Mahomed Gazi Mahomed Golab v. Mahomed Sulliman Pran Nath Roy v. Mohesh Chandra Moitra Nistarini Dassi v. Nandulal Bose Radha Raman Shaha v. Pran Nath Roy Khagendra Nath Mahata v. Pran Nath Roy. But fraud i