Judgment S. N. Jha, J. 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 Sec.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 Sec.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 4. Order IX Rule 13 of the Code of civil Procedure provides that where a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside, and if he satisfies the cours that summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him and shall appoint a day for proceeding with the suit Thus, in a proceeding under Order IX Rule 13 of the Code the court has only to see, where ex parte decree is sought to be set aside on the ground of non-service of summons etc, whether the summons had been duly served on the applicant, and in a case where applicant had already appeared in the suit pursuant to summons but failed to appear when the suit was called on for hearing, whether the non-appearance has been satisfactorily explained The scope of suit for setting aside of ex parte decree however is different as is well settled suit for setting aside ex pane decree passed in another suit can be filed only on the ground of fraud In Han Charan Rat v Dwanka prasad Singh, AIR 1961 Patna 86, it was observed that where a decree is sought to be set aside on the ground of fraud the better course is to take independent proceeding to set aside the judgment on the ground ot fraud, when the whole issue can be properly defined, fought out and determined Non-service of summons by itself may not be sufficient to prove fraud Where independent suit is brought it is permissible for the court to go into the merits of the original claim and if the claim is found to be false, to draw such inference as to fraud as the circumstances may warrant This court followed a Full Bench decision in the case of Nirsan Singh v Kishuni singh, AIR 1931 Patna 204 5. It is thus obvious that the scope of the Misc Case under Order IX Rule 13 of the Code and regular title suit for setting aside the ex parte decree is different While in the Misc Case the court is only to see whether summons was duly served or not, in case where the defendants had already appeared, whether he had sufficient cause for non-appearance on the date the suit was called on for hearing, in title suit the issue is not confined to mere non-service of summons, the court can look into the merits of the claim, the circumstances in which the decree was passed and draw its inferences In this view of the matter, I am of the opinion that rejection of the Misc Case under order IX Rule 13 would not stand as a bar to the maintainability of the suit It may be recalled that in the present case the Misc Case was rejected on the ground of limitation and not on merit 6. The impugned order so far as from another infirmity The question of maintainability is invariably an issue in the suit Such an issue is required to be decided alongwith other issues, unless the case comes within the ambit of sub-rule (2) of Order XIV, Rule 2 of the code Even in such cases falling within the ambit of said provision it is optional to decide the issue as preliminary issue or to decide the same alongwith other issues in the suit In the present case, no issue as to maintainability of the suit appears to have been framed The court below therefore, in my opinion, committed error in exercise of its jurisdiction which requires interference by this court 7. In the result, the impugned order dated 15-10-96 in Title Suit No 112 of 1995 is set aside The suit shall proceed in accordance with law The civil Revision is accordingly allowed revision Allowed