Harnam Singh, J.
1. In order to appreciate the points arising In L. P. Appeal No. 80 of 1949 the facts of the case may be set out in some detail.
2. On 23-3-1926, Basanta Mal and Bhagwan Das mortgaged the shop in suit in favour of Nand Singh for rupees 9,000/- on the foot of the mortgage deed, Ext. D. 10. Out of the mortgage money Rs. 8.875/- were left in deposit with Nand Singh for payment to Ram Chand, previous mortgagee of the shop in-suit on the foot of mortgage made on 204-1920. On the 23-3-1926, Basanta Mal and Bhagwan Das obtained the shop in suit on rent from Nand Singh mortgagee on the foot of rent deed, Ext. D. 11.
3. On 6-7-1923, Nand Singh brought a suit for ejectment against Basanta Mal and Bhagwan Das. Basanta Mal, however, brought a suit for cancellation of the mortgage. On 21-11-1928, the suite were compromised. Possession of the shop was delivered to the mortgagee and it was agreed that the mortgage money would be paid in Instalments stated in the compromise, Ext. D. 12.
4. On 8-11-1933, Behari Lal defendant obtained an ex parte money decree against Basanta Mal and Bhagwan Das. In execution of that decree, the shop in dispute was put to sale and, at the auction sale, Benari Lal decree-holder purchased the equity of redemption on 19-4-1935. No application was made under Rules 89, 90 and 90 of Order 21, Civil P. C., with the result that the auction sale was confirmed on 14-5-1935.
5. On 2-10-1944, Basanta Mal applied under Rule 13, Order 9, C.P.C. for the setting aside of the ex-parte decree. In the application under Rule 13, Order 9 of the Code, Ext. D. 4. Basanta Mal maintained that he and his son Bhagwan Das left Jullundur City for Indore in September 1930, and returned to Jullundur City in April 1942. On 28-9-1944, it is said that Basanta Mal came to know for the first time that Behari Lal had obtained an exparte decree against Messrs. Basanta Mal Bhagwan Das, and in execution of that decree had pur-chased the equity of redemption. Basanta Mal claimed to be the proprietor of Messrs. Basanta Mal Bhagwan Das.
6. In rejecting the application for the setting aside of the ex-parte decree the Court came to the conclusion that the application was barred by time.
7. From the order passed by the Court reject-ing the application under Rule 13, Order 9, Civil P. C. on 7-8-1945, Basanta Mal appealed in the Court of the Senior Subordinate Judge at Jullundur. That appeal failed and was dismissed with costs. In dismissing the appeal the Senior Subordinate Judge said:
'From all these facts, it would be evident that the petitioner was duly served by proclamation on 12-10-1933, after which a decree was passed against the petitioner on 8-11-1933 by holding that the petitioner was duly served. No doubt the respondent was ordered by the Court to put in the correct address of the petitioner and in its place the petition for substituted service was submitted to the Court by alleging that the petitioner was evading service, that his real residence was in Jullundur City and that he absconded by learning of the Institution of the suit and could not be served in an ordinary manner. The petitioner has examined no less than 11 witnesses in Court and has himself appeared in the witness box to depose that he had gone to Indore State in the year 1930 and had returned in the month of April, 1942. The petitioner has also examined certain witnesses on commission who also stated that the petitioner was carrying on business in Indore State from the year 1930 up to 1942. It is in the evidence of Mr. V. V. Kewardev, Advocate, that he has been working as counsel for the petitioner from the year 1932 to 1942 and the documents, marked Exts. C. W. 1/1 to C. W. 1/8, have been produced in support of that fact. Mr. E. D. Keriwala, who was also examined at Indore, stated that Basanta Mal met him in the year 1934-35 and also met him on the last occasion in the year 1942. In cross-examination, this witness stated that Basanta Mal petitioner had been purchasing commodities from his shop from the year 1937 to 1941 and on many occasions Basante Mal himself came to his shop for the aforesaid purchases.
The last two witnesses, examined at Indore, had to admit in cross-examination that they, are not in a position to state as to whether Basanta Mal went outside from the year 1934 up to 1942. Even, Durga Das, D. H. W. 7, admitted in cross-examination that Basanta Mal and his son, Bhagwan Das, went away from Jullundur fromthe year 1930 uptill 1942 but had been comingto Jullundur in between. Basanta Mal petitioner, while appearing as his own witness, admitted, in cross-examination that he came toJullundur in tne years 1938, 1940 and in the year1942. Under these circumstances it cannot besaid that any fraud or deception was practisedupon the respondent or the Court in applyingfor substituted service, Inasmuch as Basanta Maland his son Bhagwant Das, were admittedly coming to Jullundur on several occasions and ithas not been established that Basanta Mal infact was outside Jullundur in the year 1933.'
Copy of the order passed by the Senior Subordinate Judge is Exhibit D. 2.
8. From the order passed by the Senior Subordinate Judge on appeal Basanta Mal went up in revision to the High Court. In the revisional proceedings the order pissed by the Senior Subordinate Judge was confirmed and the petition for revision was dismissed. In this connection copy of the order passed by the High Court Ext. D. 8, .may be seen,
9. On 27-3-1946, Basanta Mal instituted the suit out of which this appeal arises 'for setting aside the 'ex parte' decree and auction sale on finding them to be fraudulent.'
10. Behari Lal defendant pleaded 'inter alia' that the suit for setting aside the 'ex parte' decree was barred because the plaintiff applied under Rule 13, Order 9, Civil P. C. to have the decree set aside, and that application was refused on merits. Behari Lal defendant then pleaded that Order 21, Rule 92(3), Civil P. C. barred the suit in so far as that suit related to the setting aside of the auction sale.
11. On the pleadings of the parties, the Court of first instance fixed the following issues:
1. Whether the suit is barred by res judicata?
2. Whether the suit is not maintainable in the present form?
3. Whether the decree is no longer operative and whether the suit is not maintainable in view of that?
12. In deciding the suit the Court came to the conclusion that the suit was barred by the principles of res judicata and, by the provisions of Order 21, Rule 92(3) and Section 47, Civil P. C- On issue No. 2, the Court found that the plaintiff ought to have sued for possession in respect of the ground floor but suit for mere declaration was maintainable in respect of the first floor. On issue No. 3 counsel for the defendant conceded that there was no force in the plea covered by that issue. In the result, the Court of first instance dismissed the suit with costs. Basanta Mal appealed in the Court of the Senior Subordinate Judge. In that appeal, the decision given by the Court of 'first instance on issue No. 1 was affirmed.
13. From the decree passed by the Sr. Subordinate Judge on 7-7-1948, Basanta MM appealed under Section 100, Civil P. C.
14. In deciding that appeal Khosla, J. has found that the suit to set aside the ex parte decree was barred by the principles of res judicata and that the suit to set aside the auction sale was barred under Order 21, Rule 92(3) and Section 47, Civil P. C.
15. Prom the Judgment given by Khosla, J. in Reg. 2nd Appeal No. 643 of 1948 Basanta Mal appeals under para. 10 of the Letters Patent.
16. In order to see whether the refusal of the application under Rule 13, Order 9, Civil P. C., has already determined the question now raised, it is necessary to ascertain what are the true grounds and the scope of the suit out of which the appeal has arisen.
17. Paras Nos. 3 to 7 of the plaint deal with the matters on which the ex parte decree is sought to be set aside, in para. 3 of the plaint it is stated that Benari Lal defendent carried on business in Mandi Fenton Ganj, Jullundur, and knew that the plaintiff had left Jullundur for Indore in 1930. In para No. 4 it is pleaded that Behari Lal gave notice to the plaintiff on 8-8-1933, but that notice was returned to him with the endorsement that the whereabouts of Basanta Mal were not known, notwithstanding that the plaintiff mentioned in the plaint that the defendant was residing at Jullundur. In para. 5 of the plaint it is pleaded that notices were issued for the service of the defendant whereupon the process-server reported that the whereabouts of the defendant were not known. On 10-10-1933, the plaintiff applied for substituted service on the defendant and in support of that application gave affidavit that the defendant was evading service. On these facts, it is maintained that the substituted service effected on the defendant was not sufficient within Rule 13 of Order 9, Civil P. C.
I8. From what I have said above, it appears that the only ground on which the ex parte decree is sought to be set aside is that there was fraud in the service of the process on the present plaintiff in the previous suit. On the 2-10-1944, Basanta Mal applied under Rule 13, Order 9, for setting aside the ex parte decree passed in civil suit No. 933 of 1943 on the 8-11-1933. That application proceeded upon matters pleaded in paras 3 to 7 of the plaint, In this connection, copy of the application under Rule 13, p. 9 of the Code, Ext. D. 4, may be seen. In deciding that application, the Court came to the conclusion that the applicant was not duly served but that the application was barred by time. In appeal, Sardar Gurcharan Singh, Snr. Subordinate Judge, was of the opinion that the appellant was duly, served and the application was barred by time. From the order passed by the Snr. Subordinate Judge a revision was filed in the High Court but the petition for revision was dismissed On 7-3-1946.
19. Indisputably, the grounds on which the present suit for the setting aside of the ex parte decree is founded are the grounds upon which the ex parte decree was sought to be set aside in proceedings under Rule 13, Order 9, Civil P. C. If so, the present suit for the setting aside of the ex parte decree is barred by the principles of res' judicata.
20. Basing himself upon -- 'Khageudra Nath v. Pran Nath', 29 Cal 395 Privy Council, counsel for the appellant urges that the decision of the Courts below is wrong.
21. In -- 'Khagendra Nath v. Pran Nath', 29 Cal 395 Privy Council the suit was instituted to set aside an ex parte decree and a sale in execution of such, a decree as illegal, fraudulent and collusive, the allegation made in the plaint being an attack not on the regularity or sufficiency of the service, of summons or the proceedings, but on the whole suit in which the ex parte decree was obtained as being fraud from beginning to end. Oa those facts Lord Robertson delivering the judgment of their Lordships of the Privy Council found that the suit was maintainable notwithstanding that the plaintiff had been unsuccessful in applications under Ss. 108 and 311 of the Code of 1882 to set aside the ex parte decree and the sale in execution; the Questions In the suit as a whole being such as could not have been determined on applications under those sections. Section 103 of the Code of 1882 corresponded with Rule 13, Order 9 of the Code and Section 311, Civil P. C,, 1882, corresponded with Order 21, Rule 90 Civil P. C. In my judgment, the decision in 29 Cal 395(P.C.) does not govern the present case where the ex parte decree is sought to be set aside on the ground that there was fraud in the service Of the process on the present plaintiff and the existence of a real suit in which the decree was passed is not attacked.
22. From paragraph 9 of the plaint it appears that the 'right of redemption was sold on 19-4-1935, and that the sale was confirmed within Rule 92 of Order 21, Civil P. C., on 14-5-1935. In paragraphs Nos. 10, 11 and 12 of the plaint, it is stated that there was fraud in the matter of publishing the sale. Clearly, the objections on which the auction-sale is sought to be set aside, fall within Rule 90, of Order 21 Civil P. C. If so, Rule 92(3), Order 21 bars the suit.
23. In arguments it was said on behalf of the plaintiff that suit to set aside the auction-sale should be treated to be a proceeding under Section 47, of the Code. On his own showing, the plaintiff came to know of the auction sale on 28-9-1944. Article 168, Limitation Act, provides that the period of limitation for an application to set aside an auction-sate is 30 days from the date of the sale.
24. Now, the sale which is sought to be set aside took place on 19-4-1935, while the suit was brought on the 27th of March, 1946. Section 47(2) of the Code reads:
'47(2) The Court may, subject to any objection as to limitation of jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.'
Clearly, there would be no jurisdiction for the adoption of the course suggested by the learned Counsel for the appellant
25. No other point arises in these proceedings. (20) In the result I dismiss with costs Letters Patent Appeal No. 80 of 1949.
26. I agree.