An ex parte decree is a decree on merits and operates as res judicata between the parties in any subsequent suit.

V.K. Agarwal, J.

1. This appeal is directed against the judgment and decree dt. 18.09.1987 in Civil Appeal No. 6-A of 80 by District Judge, Sagar, affirming the judgment and decree dt. 3-11-1980 in Civil Suit No. 10-A of 1979 by Ist Civil Judge, Class-I, Sagar, whereby the plaintiff/appellant's suit for declaration and injunction was dismissed.

2. The plaintiff/appellant's case was that he was neighbour of respondent/defendant No. 1, who is a broker in real estate. It was alleged by the plaintiff/appellant that the respondent/defendant No. 1 by practicing fraud obtained the documents of title, etc., of his house No. 226, situate at ward Itwari Toria, Sagar and had also obtained plaintiff/appellant's signature on a stamp of Rs. 7/-. The plaintiff/appellant later came to know that the said blank stamp paper of Rs. 7/- signed by him has been misused and an agreement to sell the house for Rs. 20,000.00 was prepared thereon by the respondent/defendant No. 1. The plaintiff/appellant served a notice dt. 23-4-1979 on the respondent/defendant No. 1 and also lodged a report against him with the police.

3. It has been averred by the plaintiff/appellant that he never entered into an agreement with the defendant/respondent No. 2 to sell his house for Rs. 20,000/- and never acknowledged to have received Rs. 15,000/- as earnest money, as has been intimated by defendant No. 2 in response to above notice. He has therefore sought a declaration that the said stamp purporting to be 'agreement to sell' dt. 30-12-1976 was null and void having been obtained by fraud with a further relief that the defendants be restrained from evicting the plaintiff/appellant from the suit house.

4. The defendants/respondents resisted the suit and denied the above allegations. They urged that the plaintiff/appellant and defendant No. 1/respondent No. 2 had entered into an agreement whereby plaintiff/appellant had agreed to sell his house to respondent/defendant No. 1; and the plaintiff/appellant had received a sum of Rs. 15,000/- towards earnest money. They thus denied that the document i.e. the agreement to sell, executed by the plaintiff/appellant was a forged or fabricated one. They also pleaded that the defendant No. 2 had filed a civil suit in regard to the said document, i.e. agreement to sell dt. 30-12-1976 which was registered as Civil Suit No. 9-A of 1979, and a decree of specific performance has been granted in favour of defendant/respondent No. 2. The said judgment and decree having become final, will operate as res judicata, and thus constitute a bar to the present suit.

5. Both the Courts below have held that the decision in earlier suit (C.S. No. 9-A/79) operates as res judicata and the present suit is therefore not maintainable.

6. This second appeal has been admitted on the following substantial question of law

"Whether the decree passed in Civil Suit No. 9-A/79 (Nirmal Kumar v. Gotulal) operates res judicata in the present suit?"

7. Learned counsel for plaintiff/appellant has urged that since the document dt. 30-12-1976 which purports to be an agreement of sale of the house by the plaintiff in favour of defendant/respondent No. 2, was obtained by fraud, he is entitled to bring a suit raising contentions as he has done by way of present suit. It has also been urged by him that since the earlier suit (9-A of 1979) was not decided on merits, but ex parte, present suit is maintainable and is not barred by principles of res judicata. In this connection he has placed reliance on Mahboob Sahab v. Syed Ismail, AIR 1995 SC1205; Ibne Hasan v. Hasina Bibi, AIR 1984 All. 216, Beli Ram and Brothers v. Chaudri Mohammad Afzal, AIR 1948 PC. 168 and Jaswant Singh and Anr. v. Custodian of Evacuee Property, New, (1985) 3 SCC 648.

8. As against this, the learned counsel for respondents has urged that, the earlier suit (C. S. No. 9-A/79) was filed regarding the above document 'agreement of sale' dt. 30-12-1976. It was decreed, though ex parte against the plaintiff/appella