(1.) The question involved in this Revision is whether a person who is not eo nomine a party to a suit under R.8 of Order I of the Code of Civil Procedure could maintain an application under Order IX R.13 of the Code of Civil Procedure to set aside an ex parte decree passed in the suit.
(2.) The revision petitioner filed OS No. 388 of 1996, on the file of the Court of the Munsiff of Kanjirappally, against respondents 2 to 4 for a permanent prohibitory injunction restraining the defendants from constructing a new road through plaint schedule item No. 3 or causing any obstruction to the plaintiff to erect a gate in item No. 3. The case of the plaintiff is that plaint schedule item Nos. 1 and 2 belonged to him and item No. 3 is a private road starting from the public road and ending in plaint schedule item No. 1. The third defendant in the suit is "The Public of Chirakkadavu Grama Panchayat, Ward No. V, represented by Ward Member V. G. Lal". The suit was filed invoking Order I R.8 of the Code of Civil Procedure, the third defendant representing similarly interested persons in Ward No. V of Chirakkadavu Grama Panchayat. The defendants remained ex parte in the suit. The suit was decreed on 25/09/1997.
(3.) The first respondent, who was not eo nomine a party to the suit, filed IA No. 2142 of 1998, to set aside the ex parte decree. He alleged that he came to know of the decree only on 12/11/1998. The first respondent was employed in a Gulf country and, according to him, he returned to India only on 25/05/1997. The first respondent also put forward a contention that the decree was obtained by fraud and misrepresentation.