S.K. Ghose, J.
1. This rule has arisen in the following circumstances: The opposite party-defendants brought a Small Cause Court suit against the petitioner and obtained an ex parte decree. The petitioner's case is that processes were suppressed. Failing to get a review, the petitioner brought Title Suit No. 147 of 1937 to have the ex parte decree set aside on the ground of fraudulent suppression of summons, and for a finding that the claim in the Small Cause Court suit was false. The Munsif dismissed the suit. On appeal the learned Subordinate Judge reversed that decision and decreed the suit. In the course of his judgment he remarks as follows:
It must therefore be held that so far as this suit is concerned, the defendants failed to prove that their claim in the previous suit was a true one. It has been shown that the summons in the previous suit had not been served on the plaintiff, and that the defendants have failed to prove so far as this suit is concerned that the claim in the previous suit was true.
2. Accordingly the Subordinate Judge proceeded to direct that the decree in the Small Cause Court suit be set aside. After this judgment was delivered and signed in open Court, the Subordinate Judge made a subsequent order directing the Small Cause Court suit to be restored to file in its original number and to be tried on the merits again. Against this order the present rule has been obtained. It is pointed out that the subsequent order is contrary to the provisions of Order 20, Rule 3, Civil P.C. On the other side, it is contended that the finding of the Subordinate Judge to the effect, that the defendants have failed to prove that their claim in the previous suit was a true one, is incidental, and I am referred to the ease in Nirsan Singh v. Kishuni Singh (1931) 18 A.I.R. Pat. 204 But, as is pointed out in that very case at p. 524 of the report, in such a suit by the defendant as plaintiff, he may attack the original suit in which the ex parte decree has been obtained as being a fraud from beginning to end, and that the plaintiff's claim itself is false, and there was absolutely no foundation for the suit. This is what the petitioner as plaintiff sought to do in the present suit. It would be mere playing with words to say that only for the purpose of this suit, it has been held that the defendants have failed to prove that their claim in the previous suit was true. In any case, having passed the judgment, it was not open to the learned Subordinate Judge to make a further order directing that the Small Cause Court suit should be revived. The order complained against must therefore be set aside. The rule is made absolute. There will be no order as to costs in this Rule.