(1.) This civil revision by the plaintiff is directed against the order dated 15-10-96 passed by 1st Additional munsif, Katihar dismissing his suit being Title Suit No 112 of 1995 as not maintainable
(2.) Opposite Party filed Title Suit no 95 of 1989 seeking declaration of right, title in the land described in schedules 'a 'b' and 'c' to the plaint the lands mentioned in these Schedules were recorded in the names of defendants no. 1 and 2, defendant No 3 and defendant No 4, respectively. The petitioner was defendant No. 4 in the suit By amendment opposite party also sought decree for recovery of possession with respect to Schedule 'c' land against defendant No 4, i. e. the petitioner herein, alleging that during pendency of the suit in January, 1990, he had forcibly dispossessed her and made construction The suit was decreed ex parte on 17-12-92 The title of the opposite party with respect to the suit land was declared, she was also held entitled to recovery of possession of schedule 'c' land from the petitioner on 22-11-93 the petitioner filed Misc case No 4 of 1993 for setting aside ex parte decree under Order IX Rule 13 of the Code of Civil Procedure which was dismissed on the ground of limitation on 22-6-94 He thereafter filed the present suit, i e Title Suit No 112 of 1995 for setting aside ex parte decree on the ground of fraud By the impugned order the suit has been dismissed as not maintainable The court has held that the petitioner has right to contest the execution of the decree levied by the opposite party vide Execution Case No 1 of 1993 It may be mentioned here that objection under Section 47 ot the Code (Misc Case No 7 of 1995) filed by the petitioner in the said execution case was later dismissed by the 1st Additional munsif, Katihar on 29-11-96 The petitioner has preferred Civil Revision no 101 of 1997 which is disposed of by a separate order today
(3.) As is well known, an ex parte decree can be challenged by three different modes It can be challenged by way of regular appeal under Section 96 of the Code It can be challenged also by way of a suit on the ground of fraud the decree can also be set aside under order IX Rule 13 of the Code An aggrieved party may seek one or the other remedy as he may be advised In the present case, the petitioner filed application for setting aside the decree under Order IX, Rule 13 of the Code the point for consideration is whether the order dismissing the Misc Case would preclude the petitioner from filing a suit for selling aside the decree on the ground of fraud