JUDGMENT

M.N. Shukla, J. - This appeal preferred by the defendant possess the question as to whether the decision given in proceedings under order 9, rule 13, C.P.C. and dismissing the defendant's application for setting side ex-parte decree in the circumstances of the case operated as res judicata and precluded the present plaintiffs from bringing a suit for a declaration that the previous decree was null and void as it had been obtained by fraud. The suit giving rise to this appeal was decreed by the courts below and aggrieved by the same the defendant-has preferred this second appeal.

2. I have heard Sri S. P. Gupta on behalf of the appellant but none has appeared for the plaintiff respondents.

3. The short facts of the case are that on 3-3-1954 the appellant Har Bilas had made an application under Section 220 of the U.P. Zamindari Abolition and Land Reforms Act for recovery of arrears of rent at the rate of Rs. 52/- per annum and in the alternative for ejectment of the present respondents on the ground that they were Asamis of the plots and had fallen into arrears of rent. Notice was issued on the said application and the report of the process server showed that the service thereof had been effected on the present respondents by refusal. An ex parte order for their ejectment was passed on 1-6 1954. Possession on the basis of the aforesaid decree was also alleged to have been taken by the appellant vide Dakhalnama dated 25-6-1954. On 27.5.1955 the respondents moved an application under order 9, rule 13 C.P.C. for setting side the ex-parte order dated 1-6-1954 passed in the case under section 220 of U.P. Act I of 1951. The application was rejected by the Tehsildar by his order dated 20-2-1956 (Exhibit 9). The respondents preferred an appeal which was dismissed by the Additional Commissioner by his judgment dated 15. 1. 1957 (Exhibit A3). In these circumstances the respondents filed the present suit on 18-2-1957 for a declaration that the decree No. 6 of 1954 passed by the Assistant Collector together with proceedings in pursuance thereof were obtained fraudulently and were null and void and were wholly ineffectual against the plaintiffs. The relief for a permanent injunction restraining the defendant from interfering with the Plaintiffs' peaceful possession, user and enjoyment of the plots in suit was also claimed.

4. The lower appellate court came to the conclusion that fraud had been practised in the service of summons of the proceedings under Section 220 of U.P. Act I of 1951 and that the report of the process server that he met the plaintiff and the latter refused to accept the summons was collusive. On that finding the court below decreed the plaintiffs' suit and granted the declaration and the injunction prayed for.

5. The point which has been urged before me on behalf of the appellant is that the ground about non-service of summons in proceedings under section 220 of U.P. Act I of 1951 had been agitated and decided against the respondents in the earlier proceedings for setting aside the ex-parte decree and hence the present suit based on the same ground was barred by res judicata. A reference may be made in this connection to the order dated 20-2-1966 (Exhibit 9) passed by the Assistant Collector on the application under order 9, rule 13 C.P.C. read with Section 151, C.P.C. The two points which had been canvassed before him were that the order dated 1-6-1954 in case No. 6 of 1954 had been obtained without due service of notice on the respondents i. e. the report of the process server about the refusal of the summons was collusive and had been fraudulently obtained, and further that the present respondents had no knowledge of the alleged delivery of possession on 25. 6. 1954 to the appellant and that they came to know of the ex-parte order only when the present appellant filed a complaint with the court of Sri G. S. Dayal, Magistrate, against them and they inspected the Misil Band Register on 27-5-1955 in order to ascer