Judgment S.N.Jha, J. 1. This civil revision by the plaintiff is directed against the order dated 1.5.97 passed by 2nd Subordinate Judge, Aurangabad in Partition Suit No. 20/16 of 1988-95 dismissing the suit on a preliminary issue as being barred by res judicata under Sec. 11 of the Code of Civil Procedure. 2. The petitioner has filed the above-mentioned suit for declaration that the ex-parte decree passed in Partition Suit No. 93 of 1966 is fraudulent, illegal, void and not binding on him, as well as for decree of partition with respect to his one-eighth share in the suit properties as well as other properties which may be found in possession of the joint family. The Court below has held that the parties as well as subject-matter of suit being common in both the suits, the joint family land having already been partitioned in the previous suit, the plaintiff cannot seek fresh partition and his claim is barred by res judicata. 3. The only point for consideration is whether the decree which is under challenge in the subsequent suit can operate as res judicata in the subsequent suit. 4. Before considering the above question it would be appropriate to State few facts about the previous suit, i.e. Partition Suit No. 93/66. Opposite party No. 1 alongwith his sons (opposite party Nos. 2 to 6) filed the said suit against his father, mother and two brothers and their sons for partition of their one-fifth share in the suit properties. The petitioner herein was defendant No. 6 in the suit. A written statement was filed on behalf of defendant Nos. 3, 5 and 7 that they do not want to contest the suit. The Court below on 18.9.67 passed ex-parte order decreeing the suit. According to the petitioner, he had no knowledge about the aforesaid suit or the decree until 1.2.88 when on demand being made for partition, the opposite party disclosed that the partition decree had already been passed in the aforementioned suit. The Court below on 18.9.67 passed ex-parte order decreeing the suit. According to the petitioner, he had no knowledge about the aforesaid suit or the decree until 1.2.88 when on demand being made for partition, the opposite party disclosed that the partition decree had already been passed in the aforementioned suit. It would not be out of place to mention here that in the impugned order the Court below while dealing with the question of knowledge of the previous suit has observed, "I am of the opinion that non-service of notice and non-appearance of the plaintiff in that suit makes no any difference regarding the interest of this plaintiff." 4-A. The law on the point of res judicata well settled. The doctrine of res judicata rests on the principle that one should not be vexed twice for the same cause and that there should he finality at litigation. The doctrine also rests on public policy. The basic principle of the rule of res judicata is that the cause of action for the second suit being merged in the judgment of the first suit it does no more survive for decision again. In Mathura Prasad Sarjoo Jaiswal V/s. Dossibai N.B. Jeejeebhoi -- , the Apex Court observed: A decision will be res judicata in a subsequent proceeding between the same parties if the cause of action of the subsequent proceeding be the same as in the previous proceedings but not when the cause of action is different. It is to be kept in mind that the cause action far filing the present suit is said to be the fraudulent decree in the previous partition suit about which the plaintiff petitioner came to know on 1.2.88. I fail to understand as to how a judgment or any finding recorded therein which itself is under challenge in the present suit can he res judicata. Sec. 11 of the Code of Civil Procedure, in terms, is applicable where the particular issue has been "finally decided" in the previous suit. In other words, there a decision must have attained finality. A decision which is under challenge in the subsequent suit cannot bar the subsequent suit. If it were so, the aggrieved party would have no remedy available to him. 5. In other words, there a decision must have attained finality. A decision which is under challenge in the subsequent suit cannot bar the subsequent suit. If it were so, the aggrieved party would have no remedy available to him. 5. In Ashraf V/s. Karim Bux AIR 1949 Allahabad 198, it was observed: A suit to set aside an ex parte decree based on the allegation that the defendants claim in the earlier suit was itself a fraud on the plaintiffs of the later suit and that the contrivance adopted in procuring a false endorsement of service on the summons was only a part of the same fraud, is not barred by res judicata on any point that may have been decided about that service in the miscellaneous proceeding. In the above-noted suit the aggrieved defendant had earlier filed an application under Order IX, Rule 13 of the Code to) set aside the ex parte decree which was rejected where after he filed the suit. If a suit lies even after the defendant has flailed to get the ex parte decree set aside, he can certainly file a suit straightway for setting aside either ex parte decree or the compromise decree on the ground of fraud or collusion, etc. 6 In Beli Ram & Brothers V/s. Chaudhry Md. Afzal AIR 1948 PC 168, the Judicial Committee observed that a decree obtained in a suit is not binding upon the parties and where it is established that in the previous suit decree was obtained by fraud or collusion, it would not operate as res judicata. 7. In the above view of the matter, the impugned order dismissing the suit as being barred by res judicata cannot be said to be in accordance with law. 8. This application is, accordingly, allowed, the impugned order dated 1.5.97 is set aside. The Court below is directed to proceed with the suit in accordance with law. 9. Let it be recorded that despite valid service of notice opposite party did not enter appearance and, therefore, this case was heard ex parte.