G. Jayachandran, J.

Short but very interesting point involved in the present second appeal is whether an ex parte decree passed after completion of pleading would constitute res judicata and whether such a decree can be challenged in an separate suit on the ground of fraud and misrepresentation.

2. The brief facts involved in this case is as follows :-

The admitted facts in this case is that while Perumal has purchased property covered in S.No.154/1 at Sivadapuram Village, Salem Taluk in the year 1969 vide Ex.A1, the respondents herein had purchased the property falling under S.No.154/2 in the year 1980, for the property in dispute earlier OS.No.233 of 1992 was filed by Rathinammal and ex parte decree in her favour was passed.

3. The plaintiffs who are wife, daughter and son of one Perumal, have filed the suit which is the subject matter of the present appeal claiming that the ex parte decree passed in OS.No.233 of 1992 is vitiated by fraud, suppression of facts and misrepresentation.

Admittedly, the earlier suit in OS.No.233 of 1992 filed by the first respondent herein against one Perumal who is the husband and father of the present appellants, was contested by Perumal by filing written statement and later he did not participated in the trial and remained ex parte. Hence, the ex parte decree was passed against him on 24.07.1997, culminating him in filing of Execution Petition in REP.No.18 of 1999 by the respondents herein. The execution petition was obstructed and pending execution petition, the said Perumal died intestate on 22.06.2000. The appellants herein were brought on record in the execution petition. Pending, execution petition, the suit in OS.No.156 of 2001 was filed by the appellants who are the legal heirs of late Perunal to declare the earlier decree passed in OS.No.233 of 1992 as void and to declare the appellants as absolute owner of the suit property and for permanent injunction.

4. In the earlier suit in OS.No.233 of 1992, the specific case of the respondents herein was that Perumal had encroached about 415 sq.ft of land falling under S.No.154/2 which has been resurveyed as S.No.154/2A1 and had put up construction over the encroached land. In the said suit, the Perumal has filed written statement which is marked as Ex.P10 in latter Suit (OS.No.156 of 2001). The specific case of Perumal was that he purchased the property in the year 1969 and had put up construction in the year 1974 itself, in the portion of the land, which is in his enjoyment ever since 1969. The respondents who have purchased the land after 11 years, trying to encroach upon his land and has filed OS.No.233 of 1992 seeking declaration and possession of the red colour marked property, over which the respondents herein have no right. Even if they have title they have lost the right over the property due to open and continuous enjoyment of the said property by him, since 1969.

5. After pleading so, the Perumal remained ex parte and ex parte decree was passed on 24.07.1997, till his death on 22.06.2000, he has not taken any steps to set aside the ex parte decree or to contest the REP.No.18 of 1999. The legal representatives of Perumal who are the appellants herein after being impleaded as judgment debtors in REP.No.18 of 1999, have chosen to file fresh suit seeking declaration of earlier decree passed in OS.No.233 of 1992 as a fraudulent decree obtained by way of misrepresentation.

6. The appellants herein have based there suit for two reliefs; firstly, they want to declare a decree passed against them as void and enforceable; secondly, they want a decree in their favour declaring them as the owner of the suit property, as if they are perfected the title over the property by adverse possession.

7. Order 6, Rule 4 CPC specifically mandates the plaintiff who pleads misrepresentation, fraud, breach of trust, wilful default or undue influence, those particulars must be necessarily exemplified with dates.

8. This Court tried to find out whether the plea