JUDGMENT Mukerji, J. - This is a first appeal an Order of remand by the lower appellate court. The appeal came up before a learned single Judge who thought that the appeal raised a substantial question of res judicata and, therefore, he referred the case to a Bench for disposal. 2. The appellant before us was the defendant in the trial court. The suit was one for the setting aside of an ex parte decree which, according to the plaintiffs, had been obtained by fraud. The decree which was attacked and which was sought to be set aside was a decree for ejectment which had been obtained under the provisions of Section 220 of the Zamindari Abolition and Land Reforms Act. 3.It appears that the defendant had sued the plaintiffs for the recovery of arrears of rent and ejectment of the plaintiffs from certain plots of agricultural land. There was an ex parte decree in that suit. The plaintiffs made an attempt to have that ex parte decree set aside on the ground that service of summons had not been effected on them and that they had no knowledge of the suit. The application for the setting aside of the ex parte decree in the ejectment suit had apparently been made under the provisions of Or. 9, R. 13, C.P.C. The learned Assistant Collector of Bah, Agra, who had the application before him, came to the conclusion that it had not been proved that there was no service of summons or that the plaintiffs did not know of the suit. He further found that the application for setting aside the ex parte decree was barred by time. He, therefore, dismissed the application and refused to set aside the ex parte decree. It is interesting, however, to note in this connection that the allegations made in that application against the Kurk Amin which amounted to collusion and fraud were not considered for purposes of giving relief to the applicants under the provisions of Rule. 13 of Or. 9, and the applicants were told that if they so chose, they could seek their remedy in some appropriate proceedings under the Code open to them. 13 of Or. 9, and the applicants were told that if they so chose, they could seek their remedy in some appropriate proceedings under the Code open to them. This observation of the learned Assistant Collector clearly showed that the Assistant Collector refrained from going into any question of fraud that may have been raised before him, and indeed, in our opinion, he was not wrong, for Or. 9, R. 13 is limited in its scope for giving relief to a party, who seeks the setting aside of an ex-parte decree, to the ground that either the party had not been duly served or that he had been prevented by any sufficient cause from appearing when the suit was called on for hearing. This Court has added a Proviso to the rule, as it originally stood, and the Proviso added reads thus : "Provided also that no such decree shall be set aside merely on the ground of irregularity in the service of summons, if the Court is satisfied that the defendant ...... knew or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim." 4. Strictly speaking, therefore, under the provisions of R. 13 of Or. 9 an enquiry into fraud practised by a party in obtaining an ex parte decree could not be gone into. 5. An appeal was preferred to the Commissioner against the order of the learned Assistant Collector, and the Commissioner dismissed the appeal on the 15th of January, 1951. We may point out here that the application which had been made for the setting aside of the ex parte decree was prima facie beyond time, for the ex parte decree was made on the 1st of June, 1954, while the application for setting aside the ex parte decree was made on the 27th July, 1955. 6. The suit out of which this appeal has arisen was filed on the 18th February, 1957. On the plaint allegations it was perfectly clear that the plaintiffs' case was that fraud had been practised upon the plaintiffs as also the court concerned by the defendant, and because of that fraud the plaintiff of that suit was able to obtain the ex parte decree. In para. 5 of the plaint the particulars of the fraud, as required by law, were set out. In para. 5 of the plaint the particulars of the fraud, as required by law, were set out. In para. 6 of the plaint the plaintiffs clearly set out the fact that they had attempted to have the ex parte decree set aside under R. 13 of Or. 9, but that they had failed in their endeavour because the courts, the revenue courts, held the application barred by time. The learned Munsif on the pleadings of the parties struck seven issues in the first instance and thereafter he added three more issues on the 10th of May, 1958. The tenth issue, one of the subsequent issues added, was relevant for the purposes of this appeal and the issue was in these words: "Whether the suit is barred by res judicata ?" 7. By a subsequent order the learned Munsif directed the trial of issue no. 10 as a preliminary issue. The issue was, according to the order of the learned Munsif, to be tried on the 20th September, 58. On the 20th of September, 1958, the parties were heard on the issue and the learned Munsif reserved orders which he made on the 29th September, 1958. By this order the learned Munsif directed the rejection of the plaint on the ground that the plaint disclosed no cause of action. We cannot help mentioning, even at this stage, that the view which the learned Munsif took and the resulting order that he made - we mean the operative portion of the order - was rather novel. 8. The contention that found favour with the learned Munsif was that since there was an adjudication in regard to whether or not the ex parte decree could be set aside under the provisions of Or. 9, R. 13, and since in those proceedings reference to fraud was made the decision given by the Assistant Collector operate as res judicata or operated as a bar to the present suit. It was also, apparently, contended that because of the bar the plaintiffs could not possibly say that they had a cause of action. The learned Munsif in our opinion, completely missed the grave man of the matter. He appeared to think that the plaintiffs' suit was not one in which they made fraud the real basis of the suit. It was also, apparently, contended that because of the bar the plaintiffs could not possibly say that they had a cause of action. The learned Munsif in our opinion, completely missed the grave man of the matter. He appeared to think that the plaintiffs' suit was not one in which they made fraud the real basis of the suit. The learned Munsif appears to us to have not clearly understood the scope of the plaint and to have assumed that the plaintiffs' allegation in regard to fraud was only confined, at best or at worst, to the matter of service. We have already mentioned the conclusion at which the learned Munsif arrived. The decision of the learned Munsif necessitated an appeal by the plaintiffs. 9. The learned Judge on appeal, in our opinion, has come to the right conclusion in regard to the scope of the plaintiffs' suit, for the learned Judge has come to the conclusion that the Munsif's view that by the suit an attempt was being made by the plaintiffs to obtain the setting aside of the earlier decision on the plea that that decree had been obtained on false and perjured evidence or some such thing was not right. The learned Judge found, and we think rightly, that the suit as filed could not be barred by re judicata because of the decision of the learned Assistant Collector under Or. 9, R. 13 which had been given on the application which had been made by the plaintiffs for the setting aside of the ex parte decree. The scope of the present suit, as evident from the plaint, was much wider than the scope of an application which could legitimately be made under R. 13. Though we should not be understood to be laying down that in an application under R. 13 of Or. 9 a party cannot plead fraud, yet what we are saying is that it is not obligatory for a party to plead fraud in the sense in which he can plead fraud when he sues on the regular side to have an ex parte decree set aside. 10. We are also of the view that it is not obligatory for the Court in deciding an application under R. 13 of Or. 9 to go into the question of fraud generally which may have been pleaded for having the ex parte decree set aside. 10. We are also of the view that it is not obligatory for the Court in deciding an application under R. 13 of Or. 9 to go into the question of fraud generally which may have been pleaded for having the ex parte decree set aside. 11. There is good authority for holding that a decision given under R. 13 of Order 9, as it now stands or as it stood before the Code of 1908, did not operate as res judicata in respect of a suit which was subsequently filed for setting aside an ex parte decree on the ground of fraud. 12. In Radha Raman Shaha v. Pran Nath Roy, ILR 28 Cal. 475 their Lordships of the Privy Council held that where the defendants sued the plaintiff for arrears of rent and obtained an ex parte decree and in execution of which they attached and sold the land of the plaintiff and where the plaintiff applied under Section 108, C.P.C. (now Or. 9, R. 13) to set aside the decree and where his application was rejected, and further when he did not file an appeal from that order but sued to set aside the decree and the sale on the ground that the decree and the sale had been obtained by false returns of summons and processes in execution and were fraudulent and void, such a suit was maintainable. 13. In Khagendra Nath v. Pran Nath, ILR 29 Cal. 395 their Lordships of the Privy Council held that a suit to set aside an ex parte decree on the allegations of fraud was maintainable notwithstanding the fact that the plaintiff had been unsuccessful in his application to have the ex parte decree set aside under Section 108 and the sale set aside under Section 311 of the earlier C.P.C. Their Lordships clearly pointed out in this case that Secs. 108 and 311 (now Or. 9, R. 13 and Or. 21, R. 90) were limited to specific matters and that they did not traverse the "radical question" which was involved in the suit out of which the appeal to the Privy Council had arisen. 14. Their Lordships further said this : "Those sections limit the attention of the tribunal to specific matter, and, instead of subjecting to enquiry the radical question now involved, they assume the existence of a real suit. 14. Their Lordships further said this : "Those sections limit the attention of the tribunal to specific matter, and, instead of subjecting to enquiry the radical question now involved, they assume the existence of a real suit. But here the suit itself is attacked as a fraud; and the fraudulent and violent incidents of its progress, as for instance, at the stage of service and in the abduction of the respondent, while they may individually have founded an application under Secs. 108 and 311, are here treated as parts and indicia of a whole." 15. Some of the grounds which the plaintiffs have set up in their plaint for having the ex parte decree set aside may have supplied them with adequate ground for founding their application under R. 13 of Or. 9, but that, according to the view of their Lordships, just quoted above, would not be a ground for defeating the suit where the plaintiffs put in other grounds which go to make the decree an unsustainable decree and an unenforceable decree. Proceedings under R. 13 are more or less summary proceedings. 16. In Janki Kuar v. Lachmi Narain and others, 13 ALJR 753 it was pointed out that where the only fraud alleged is that which enabled the plaintiff of the earlier suit to obtain a decree on perjured and false evidence then such a fraud was not sufficient ground to justify a party, who or whose predecessor-entitled was a party to the previous suit, to bring a subsequent suit with the object of setting aside the decree in the former suit. This case was no authority for the proposition that a subsequent suit based on fraud for setting aside an ex parte decree was barred because the ex parte decree had not been set aside when an application for setting it aside was made under Order 9, Rule 13, Civil Procedure Code. 17. Mr. S. B. L. Gour, appearing on behalf of the appellant, relied on the decision in Niadar Mal v. Raunak Husain, 4 ALJR 668. This was a case where this Court held that a suit for setting aside an ex parte decree cannot be founded on the same ground on which an application for setting aside the ex parte decree had been grounded under the then Section 108 of the Code. This was a case where this Court held that a suit for setting aside an ex parte decree cannot be founded on the same ground on which an application for setting aside the ex parte decree had been grounded under the then Section 108 of the Code. This case was no authority for the proposition that where the plaintiff's suit was grounded on fraud then such a suit was barred because of a decision given earlier under Section 108 or R. 13 of Or. 9 C.P.C. which did not consider any question of fraud one way or the other. 18. Reliance was next placed on the decision in Puran Chand v. Sheo Dat Rai, 4 ALJR 51. This case too is no authority for the proposition on which we choose to rely, for this case held that where the fraud alleged was one in respect of non service of summons and where such a fraud had already been alleged and determined upon in the earlier proceedings then a subsequent suit on the same grounds was not maintainable. 19. The lower appellate court on appeal has held that the suit was not barred by res judicata and that the plaint could not be rejected on that ground. The lower appellate court has, therefore, as we pointed out earlier, remanded the case to the court below for affording an opportunity to the parties to lead evidence, hearing their counsel on all the issues involved and then deciding the suit in accordance with law. In our opinion, no exception can justly be taken to the order of remand made by the court below. 20. Mr. Gour, in this connection, contended that the respondents had an opportunity to give what evidence they liked under issue no. 10 and if they chose not to give any such evidence then they should not have been afforded an opportunity by the lower appellate court to do so. 20. Mr. Gour, in this connection, contended that the respondents had an opportunity to give what evidence they liked under issue no. 10 and if they chose not to give any such evidence then they should not have been afforded an opportunity by the lower appellate court to do so. We are of the pillion that the plaintiff respondents never got an adequate opportunity to give any evidence even on issue No. 10, for the view which the learned Munsif took was one which did not call for any evidence, and we do not think that the learned Munsif would have permitted parties to adduce evidence when he was of the opinion that the suit was not maintainable on a preliminary legal ground which really called for no evidence at all. 21. Reliance was placed by Mr. Gour on a decision of the Nagpur High Court in Badrinarayan v. Narayansingh Hanumansingh, AIR 1943 Nagpur 193 . All we need say in regard to this decision is that this decision would not even have persuasive value so far as this Court is concerned because we find that R. 23 of Or. 41, under which remands are made, has been amended by this Court to an extent to which it makes a vital difference to the original rule, while we do not find the Nagpur High Court having made any such amendment. 22. For the reasons given above, we have seen no merits in this appeal which we dismiss with costs.