The application under Section 10 CPC can only be allowed when the substantial issue is the same and the parties are the same.

K.S Rathore, J.-This writ petition is directed against the order dated 28.09.2004 passed by the Additional District Judge (Fast Track), Sikar. By the aforesaid impugned order the application moved on behalf of the defendant petitioners under Section 10 CPC was rejected.

2. The main grievance of the petitioners is that the petitioners are defendant in suit No. 90/2004 whereas respondent Nos. 2, 3 and 4 are plaintiff . The ex-parte decree was passed on 13.09.1985 to the effect that the plaintiffs are in continuous possession over the disputed property and he has acquired right on the basis of adverse possession and to protect possession, a decree for permanent injunction was also granted. The plaintiff respondents have moved an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree. He also simultaneously preferred a first regular appeal before the appellate Court. Both the proceedings i.e. application for setting aside the ex-parte decree and the appeal are pending before the Distt. Judge, Sikar.

3. Learned Counsel for the petitioners also submits that the suit filed by the plaintiff respondents is not maintainable as the relief does not come with the ambit of Section 9 of CPC. It is further submitted that in relation to the same relief remedy provided under Order 9 Rule 13 has already been sought by moving an application and has also been preferred the first appeal and the Judgment of first appeal or order passed under Order 9 Rule 13 CPC is having material bearing so far as the rights of respondent Nos. 2 to 4 are concerned, in that event, the civil suit is not maintainable before the trial Court. Therefore, the petitioners moved application under Section 10 CPC wherein it was categorically mentioned that proceedings of the suit may be stayed in view of pendency of civil regular appeal No. 62/2003 and the same was preferred prior to institution of the present suit.

4. Learned Counsel for the petitioners submits that by giving erroneous finding the Court below has passed the impugned order dated 28.09.2004, which is not only in contravention of the provisions of Section 9 and 10 of CPC but also contrary to the facts and the circumstances of the case.

5. In support of his submissions learned Counsel for the petitioners Mr. Mathur placed reliance on the Judgment s reported in 2004 (8) JT SC 581, A.C. Ananthaswamy & Ors. vs. Boraiah (d) by LRS, 2002 SAR (Civil) 346 SC, Vasant Ganesh Damle vs. Shrikant Trimbak Datar & Anr., 2000 (3) SCC 607, Dilip vs. Mohd. Azizul Haq & Anr. and AIR 1978 Delhi 221 C.L. Tandon, G.T.A. vs. Prem Pal Singh Rawat & Ors.

6. Learned Counsel for the petitioners also referred provisions of Section 10 and Order 9 Rule 13 of CPC.

7. He placed reliance on the Judgment of A.C. Ananthaswamy & Ors. vs. Boraiah (d) by Lrs. (Supra) wherein the Honble Supreme Court has held that to prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true.

Herein the instant case it was alleged by the respondents plaintiff that the notices were not properly served upon them and the ex parte decree is fraudulently obtained.

Mr. Mathur also placed reliance on the case of Dilip vs. Mohd. Azizul Haq & Ors. (Supra) wherein the Court has held that once a decree passed by a Court has been appealed against the matter becomes sub-judice again and thereafter the appellate Court acquires seisin of the whole case. A Court of appeal shall have the same powers and shall perform as nearly as may be the same duties as conferred and imposed on Courts of original jurisdiction. The hearing of an appeal under the processual law of the country being in the nature of a rehearing and it is on the theory of an appeal being in the nature of a rehearing that the Courts in this country have, in numerous cases, recognised that in moulding the relief to be granted in a case on appeal, the Court of app