JUDGMENT - B. LENTIN, J.:---This application arises from the judgment and order dated 20th July, 1971 passed by the learned Judge of the Court of Small Causes, Bombay, on the notice taken out by the petitioner (original defendant) for setting aside the ex parte decree passed against him on 17th December, 1968. The 2nd opponent is an Advocate of this Court. However, service has not been effected upon him and the present Civil Revision Application is not pressed against him. 2. The petitioner (original defendant) was in occupation of certain premises, to with a godown admeasuring 50 x 10 situate at Worli under a leave and licence granted to him by the 1st opponent (original plaintiff). In 1967, the 1st opponent filed an Ejectment Application No. 594/1967 in the Court of Small Causes at Bombay, against the petitioner in respect of this godown. On 10th December, 1967, the 1st opponent obtained an order for substituted service on the ground that the petitioner was not available and his whereabouts were not known and that he was avoiding service of the summons when the same was sought to be served on him on 6th, 7th and 14th November, 1967. The summons was thereafter sent by registered post, after the Court passed the order for substituted service. The registered packet was returned by the postal authorities with the endorsement “Not found during delivery time”. It is alleged that the same was also affixed to a conspicuous parts of the premises. On 17th December, 1968, the 1st opponent obtained an ex parte decree against the petitioner. This decree provides for notice to be given to the petitioner before execution. On 7th January, 1969, the 1st respondent made an application to the Court to issue notice to show cause why the ex parte decree should not be executed. In that application it was stated that the petitioner had vacated the suit premises and his where abouts were not known. The registered packet containing the notice was returned by the postal authorities with the endorsement “Incomplete address”. On 5th November, 1969, the ex parte decree was executed. In that application it was stated that the petitioner had vacated the suit premises and his where abouts were not known. The registered packet containing the notice was returned by the postal authorities with the endorsement “Incomplete address”. On 5th November, 1969, the ex parte decree was executed. On 6th November, 1969 the petitioner applied to the Court of Small Causes, by Miscellaneous Notice No. 2045 of 1969 for setting aside the ex parte decree, for restoration of possession, for an injunction restraining that 1st opponent from parting with possession of the premises, and for issue of notice to the Advocate who was made a respondent to show cause who prosecution should not be launched against him and the 1st opponent for making false applications to the Court and for obtaining a decree by fraud and for levying false and fraudulent execution thereof on 5th November, 1969. This application was opposed by the respondents. The learned trial Judge framed the following points for consideration. "1. Whether this application is maintainable? 2. Whether it is barred by limitation? 3. Whether the ex parte decree should be set aside? 4. Whether prosecution should be launched against the plaintiff and his Advocate the respondent?” and arrived at the following findings :--- "1. No. 2. No. 3. No. 4. No." He proceeded to discharge the notice, vacated the injunction granted to the petitioner restraining the 1st opponent from parting with possession of the premises and ordered the petitioner to pay compensatory costs to the 2nd respondent and usual costs to the 1st respondent. 3. Being aggrieved by that order, the petitioner has filed the present application. 4. Reading the judgment of the learned Judge, it appears that he has come to the conclusion that the ex parte decree should not be set aside primarily by reason of his finding that the application of the petitioner was not maintainable, as the same was bad for misjoinder of cause of action and parties. 4. Reading the judgment of the learned Judge, it appears that he has come to the conclusion that the ex parte decree should not be set aside primarily by reason of his finding that the application of the petitioner was not maintainable, as the same was bad for misjoinder of cause of action and parties. It is true that in the petitioners application for setting aside the ex parte decree several reliefs have been claimed, namely (a) that the ex parte decree passed on 17th December, 1968 be set aside, (b) that execution be set aside and possession be restored to the petitioner, (c) for interim injunction restraining the 1st respondent from parting with possession of the premises, (d) for issue of notice to the 1st and 2nd respondents to show cause why prosecution should not be launched against them for making false application and for obtaining fraudulent decree and levying execution by fraudulent means and (e) for payment by the 1st respondent of damages and /or compensatory costs. The effective part of the application itself runs into about 7 pages out of which only paras 13(a) and 16(a) pertain to the 2nd opponent. The bulk of the grievance of the petitioner and the gravamen of his charge in the main is against the 1st opponent. It is true that in that application, the petitioner has attempted to involve the 2nd opponent by alleging that he was acting in collusion with the 1st opponent and had enabled the 1st opponent by making false application to obtain a decree and execute the same fraudulently. However, in the facts and circumstances of this case, the technicality of misjoinder of causes of action and parties on which the learned Judge has based his decision, is not very material. It is obvious that the intention of the petitioner was to place all material available before the learned Judge for setting aside the ex parte decree and incidentally to enable the learned Judge if he so desired to issue process against the 2nd opponent for the alleged fraud or malpractice. It is obvious that the intention of the petitioner was to place all material available before the learned Judge for setting aside the ex parte decree and incidentally to enable the learned Judge if he so desired to issue process against the 2nd opponent for the alleged fraud or malpractice. However, even assuming for the sake of argument that in such an application for setting aside the ex parte decree, it was not competent to the petitioner to have added the 2nd opponent, as the respondent to that notice, or claim any relief against the 2nd opponent, what cannot be lost right of is that the main and fundamental question to be decided in that notice was whether there was sufficient material to have enable the learned Judge to come to the conclusion whether the ex parte decree should be set aside or not. As far as the 2nd respondent is concerned, the learned Judge has come to the conclusion that he was not guilty of any fraud or malpractice as alleged by the petitioner. However, in a few lines and on the reasoning that the 2nd opponent was not a party to the original proceeding and that the relief sought in the petitioners application, namely for setting aside the ex parte decree is quite different from the relief sought against the 2nd opponent, the learned Judge has come to the conclusion to that the petitioners application is not maintainable. 5. Here it may be stated that this matter was called out yesterday but in the absence of the learned Advocate of the 1st opponent. I kept it back till today. Even today, the learned Advocate of the 1st opponent has not chosen to remain present and hence I did not have had the benefit of his arguments. 6. However, Mr. Jha, the learned Advocate appearing on behalf of the petitioner, contended, and to may mind with justification, that there were certain factors which indicate beyond doubt that the ex parte decree obtained by the 1st opponent on 17th December, 1968 was by means which were unfair and certainly not above suspicion. Mr. Jha relied upon the facts that when the 1st opponent made his application on 7th January, 1969 for cause to be shown why the decree should not be executed, the copy of that application was returned by the postal authorities with the endorsement “incomplete address". Mr. Jha relied upon the facts that when the 1st opponent made his application on 7th January, 1969 for cause to be shown why the decree should not be executed, the copy of that application was returned by the postal authorities with the endorsement “incomplete address". I have perused that envelope. The address on the envelope merely mentions the name of the petitioner followed by the words, “Dr. E. Moses Road, Worli, Bombay-18” . . As against that the address of the petitioner given in the plaint and proceeding is “C/o New Maharashtra Trading, Gandhi Nagar, Behind Wall of Crompton Parkinson Workshop, Dr. E. Moses Road, Worli , Bombay”. Curiously enough, the exact location and full address of the petitioner has not been stated on the registered packet, with the result that it was returned by the postal authorities with the endorsement “incomplete address”. 7. This is not all. In that application of 7th January, 1969, the 1st opponent had in terms stated that the petitioner had vacated the suit premises and that his whereabouts were not known. This has been recited in terms in Para 10 of the petitioners affidavit in support of his application for setting aside the ex parte decree. Para 10 reads as under :--- “I say that it is very significant to note that the plaintiff made Application No. 47 of 1969 on 7-1-1969 for issuance of notice falsely alleging therein that the defendant had already vacated the suit premises whereas on the date of execution on 5-11-1969 I was in possession and my stock worth Rs. 7000/- was thrown away on street.” 8. The 1st opponent has filed an affidavit in reply. However, in his affidavit in reply, the 1st opponent has not chosen to deal with the averments contained in para 10 reproduced above. He has instead, contended himself by a vague averment that in order to avoid payment of compensation and being aware of the Court proceedings, the petitioner kept his godown closed for two years before executing and that there were no articles in it worth using as he was not using the premises. He has denied that stock worth Rs. 7000/- was thrown on the street. 9. He has denied that stock worth Rs. 7000/- was thrown on the street. 9. Thus there emerges firstly that there is no specific denial that the petitioner had not vacated the suit premises as contended by him and that on the day that the decree was executed, namely on 5th November, 1969, goods had been thrown out on the street. What is denied is that the value thereof was Rs. 7000/-. Now, if the petitioner had vacated the premises as alleged by the 1st opponent whose goods, (whatever be their value), were thrown out on the street, which on the showing of the 1st opponent was done? Surely nobodys except the petitioners, it not being even the 1st opponents case that goods belonging to any third party were thrown out. Further more, what is also not without significance is that after the ex parte decree was executed on 5th November, 1969, on the very next day, namely 6th November, 1969, the petitioner made his application, namely Miscellaneous Notice No. 2045 of 1969, for setting aside the ex parte decree. This is yet another circumstance which prima facie indicates that it was only on 5th November, 1969 when the decree was executed against the petitioner that he came to know about the passing of the ex parte decree on 17th December, 1968, and militates strongly against the 1st opponents version that the petitioner had vacated the premises. These aspects cast a grave cloud of suspicion on the veracity of the grounds mentioned by the 1st opponent in his application for substituted service, and that the instructions given by him to his Advocate, viz. the 2nd opponent were not quite accurate but were an attempt to mislead the Court into passing the order of substituted service. 10. In these circumstances, this is a fit case for setting aside the ex parte decree obtained by the 1st opponent on 17th December, 1968. As the Civil Revision Application against the 2nd opponent has not been pressed and who has not been served, the impugned order passed by the learned Judge to the extent that it concerns the 2nd opponent shall stand. To the extent that the impugned order touches the petitioner, the same is set aside. 11. In the result, the ex parte decree obtained the 1st opponent against the petitioner on 17th December, 1968 and the execution of the decree is set aside. To the extent that the impugned order touches the petitioner, the same is set aside. 11. In the result, the ex parte decree obtained the 1st opponent against the petitioner on 17th December, 1968 and the execution of the decree is set aside. 12. Mr. Jha applies that the 1st opponent be ordered to restore possession of the premises to the petitioner. I do not propose granting that application of Mr. Jha. It will, however, be open to the petitioner to make such application as he may be advised in the trial Court. Mr. Jha states that the petitioner will make the necessary application before the learned trial Judge within 15 days from today, and that until then the injunction granted by this Court should continue, so that the status quo can be maintained till then. I agree with Mr. Jha. 13. In the result, the Rule is made absolute to the extent indicated above. Injunction to continue for a period of 15 days from today. No order is to costs. 14. The only contention urged by Mr. Jadhav is that the application made by the petitioner in the lower Court for setting aside the ex parte decree suffered from the defect of misjoinder of cause of action and parties and hence the learned Judge was correct in dismissing the petitioners application on that ground. This aspect of the matter was discussed by me in my judgment dated 21st January, 1975. Mr. Jadhav has gone through my judgment dated 21st January, 1975 and after having perused the discussion therein, stated that he could carry the matter no further. 15. In the result, for the reasons stated in my judgment dated 21st January, 1975, the Rule is made absolute to the extent indicated therein. Injunction to continue for a period of 15 days from today. -----