Judgment S.K.Chattopadhyaya, J. 1. The defendants/appellants have impugned the judgment and decree passed-in Title Appeal No. 185/20 of 1976/79 by reason of which the judgment and decree passed by the trial Court have been reversed. 2. During the pendency of this appeal some of the appellants and respondents having died, their heirs and legal representatives were substituted. 3. While admitting this appeal the following substantial question of law was formulated: (i) Whether having lost the Misc. Case arising out of an application field under Order IX, filed Rule 13 of the Code of Civil Procedure, the suit for setting aside the ex-parte order was maintainable on the ground of fraudulant service of notice of the title suit? However, at the time of hearing it was admitted at the Bar that further points of law are required to be gone into which are as follows: (i) Whether in view of the absence of any averment atleast of the details of fraud in the plaint, the respondents could have succeeded in the suit? (ii) Whether the suit was barred by Limitation? 4. Before discussing the factual backgrounds it is to be noted that this appeal was finally heard and disposed of by this Court by judgment dated 8th April, 1986. The appeal was allowed and, thereafter, the respondents filed an application under Order XLI : Rule 21(a) read with Sec. 151 of the Code of Civil Procedure praying therein to re-hear the appeal on the ground mentioned in the petition. On such petition being filed Misc. Case No. 28/87 (R) was registered and after certain enquiry the Court was satisfied that the ground taken by the respondents for re-hearing the appeal was justified and thus on 12.7.1989 the order dated 8.4.1986 disposing of this appeal was recalled. This is how the instant appeal has been placed for final hearing. 5. The plaintiffs, Rattu Rai and Dukhni Bhatwalin filed the suit for declaration that the ex-parte decree passed in title suit No. 33/67 is not binding on the plaintiffs as being fraudulent. They also prayed for permanent injunction restraining the appellants from executing the decree of that suit and taking delivery of possession. The suit was dismissed by the trial Court but the judgment and decree were reversed by the 1st Appellant Court and the suit was decreed in favour of the respondents. They also prayed for permanent injunction restraining the appellants from executing the decree of that suit and taking delivery of possession. The suit was dismissed by the trial Court but the judgment and decree were reversed by the 1st Appellant Court and the suit was decreed in favour of the respondents. There is no controversy between the parties that Ganpat Rai and Shyamlal were two brothers. Karmu and Bahadur were two sons of Shyamlal and Ganpat died leaving behind Jamuna and Gua, is two daughters. These two ladies, as plaintiffs filed partition Suit No. 33/67 for partition of the property claiming that their father, Ganpat died after 1957. Karmu was defendant No. 1 and Most. Bibia, daughter of Ram Bahadur was defendant No. 2. Karmu having died, his son and daughter, namely, Ratoo Rai and Dukhni respectively were substituted. This title suit No. 33/67 was decreed ex-parte. Ratoo and others being defendants of the suit filed a petition under Order IX Rule 13 C.P.C. (hereinafter referred to as the Code) on the ground that summons had not been duly served on them, a Misc. Case No. 32/68 was registered and after hearing the parties, the said application was dismissed. Having been unsuccessful there, Ratoo and Dukhni filed the present suit i.e., title suit No. 33/74 for the declaration, noted above. The case of the plaintiff is that Ganpat died on 15.6.1950 and his interest in the property passed to. Karmu and Bahadur as absolute owners as Ganpats two daughters. Jamuna and Mostt. Gua did not inherit the properties of their father. By suppressing this fact Jamuna and Gua obtained an ex-parte decree in title Suit No. 33/67. Further case was that by suppressing the summons of title Suit No. 33/67 the said ex-parte decree was obtained. These facts were denied in the written statement. It was also stated that Ganpat died in 1957. 6. The trial Court, on perusal of the evidence on record, was of the opinion that in view of the findings recorded in Misc. Case No. 32/68 the present suit was barred by the-principles of resiudicata. It further held that the suit was barred by limitation as it was filed more than three years from the date from which their right accrued. Case No. 32/68 the present suit was barred by the-principles of resiudicata. It further held that the suit was barred by limitation as it was filed more than three years from the date from which their right accrued. Having found thus, the suit was dismissed but the first appellate Court reversed the finding of the trial Court by holding that the suit was neither barred by the principles of res-judicata nor barred by limitation. 7. Mr. Debi Prasad, learned Sr. Counsel appearing for the appellants has contended that the appeal should be allowed with costs because the plaintiffs respondents deliberately suppressed the fact that for setting aside the ex-parte decree of title suit No. 33/67, the plaintiffs had filed a petition under Order IX, Rule 13 of the Code and the same was dismissed on merits, According to him, these facts having not been stated in the plaint, the plaintiffs had tried to obtain a decree by suppressing the materials facts. Learned Counsel further submits that the findings arrived at in Misc. Case No. 32/68 will apply as res-judicata and the suit was rightly dismissed by the trial Court on this account. Similarly, learned counsel continues that the suit is hopelessly barred by limitation inasmuch as the suit was filed after three years from the date of dismissal of Misc. Case No. 32/68 which was dismissed on merits on 10.7.1969. 8. Mr. N.K. Prasad, learned Sr. Counsel appearing on behalf of the plaintiffs/respondents, countering the argument of Mr. Debi Prasad, however, submitted that in order to raise the plea of res-judicata the appellants as defendants were to prove as to what was the case of the plaintiffs/respondents in the petition filed under Order IX, Rule 13 of the Code. According to him when that petition was not exhibited before the Court, the Court was not competent to give any finding on the plea of res-judicata. 9. Distinguishing the decision in the case of Mt. Laganmuni Kuar and Anr. V/s. Ram Gobinda Singh and Ors. reported in AIR 1942 Patna 357, learned Counsel urged that as the allegation of fraud was there, the High Court was of the opinion that no further suit was maintainable on the ground of res-judicata. 9. Distinguishing the decision in the case of Mt. Laganmuni Kuar and Anr. V/s. Ram Gobinda Singh and Ors. reported in AIR 1942 Patna 357, learned Counsel urged that as the allegation of fraud was there, the High Court was of the opinion that no further suit was maintainable on the ground of res-judicata. According to him unless and until the petition filed by the plaintiffs/respondents under Order IX, Rule 13 of the Code is not before the Court, the Court could not have arrived at a definite finding. In support of his contention he has relied in a decision , -- and AIR 1949 Allahabad, 198. 10. On the point of limitation Mr. Prasad has urged that the time has to be counted from the date when the plaintiffs/respondents camp to know that the delivery of possession was going to be effected through the executing Court. 11. It is true that unfortunately the petition filed by the plaintiffs/respondents under Order IX, Rule 13 of the Code was not exhibited by either of the parties but from the order dated 10.7.1969 passed in Misc. Case No. 32/68 it appears that the same is quite elaborate and on reading the same the case of the plaintiffs/respondents, can well be appreciated. This order is Ext. D. The said petition was filed for setting aside the ex-parte decree on the ground of suppression of summons or notices fraudulently. They alleged that service report was collusively submitted at the instance of the appellants/defendants who had filed the said partition Suit No. 33/67. The assertions were rebutted by the other side. The learned Single Judge who tried the said Misc. Case No, 32/68 found that the partition suit was filed sometimes in 1963 where Karu Rai and others under whom the applicants made their claim, were the original defendants. The said suit was filed before the Munsif, 1st Court but as the valuation of the suit exceeded beyond the pecuniary jurisdiction of the Court, the plaint was returned for filing before the appropriate Court and the same was done. Thus the natural presumption, according to the Court, would be that the original defendants had knowledge of the suit which is apparent from the context given by them in the valuation matter. After giving further reasons, the Court dismissed the said Misc. Thus the natural presumption, according to the Court, would be that the original defendants had knowledge of the suit which is apparent from the context given by them in the valuation matter. After giving further reasons, the Court dismissed the said Misc. case holding that there was no material on record from which any such fraudulent suppression of notices can be inferred. The Court further found that they also refused to accept the notice sent through post. It also concluded that no useful purpose would be served by setting aside the ex-parte decree passed in the suit as the defendants respondents (appellants herein) nowhere alleged the plaintiff (appellant/respondents) had made a false claim or even that they were not entitled to partition which they claimed. 12. The criticism of Mr. N.K. Prasad that in the said Misc. case the Court was not competent to decide the merits of the case which was decided based on title, in my view is not sustainable. Bare perusal of the order (Ext. D) shows that the Court below has not given any finding as such but merely discussed the contention of the parties before the Munsif when the valuation matter was being argued. The Court found that though the respondents/plaintiffs (petitioners there) contested the valuation matter but did not whisper in regard to title of the plaintiffs therein who claimed partition of the suit properties. 13. In the plaint, in para 8 the plaintiffs/respondents averred that "defendant Nos. 1 and 2 fraudulently in the said suit claimed hall interest in the property though they did not inherit the same. Their father died in the year, 1950". Similarly in para 9 it is stated that" the defendant Nos. 1 and 2 fraudulently suppressed all process of Court in order to suppress the real state of facts." On this ground they wanted a declaration that the ex-parte decree obtained in title Suit No. 33/67 was vitiated by fraud. Thus from the facts mentioned above, it is apparent that almost the same plea was taken by the plaintiffs/respondents for setting aside the ex-parte decree passed in the earlier partition suit. In their petition under Order IX, Rule 13 of the Code the plea of fraudulent suppression of notice was taken but the Court incidentally after hearing the parties has also found that no allegation of false claim was raised. 14. In their petition under Order IX, Rule 13 of the Code the plea of fraudulent suppression of notice was taken but the Court incidentally after hearing the parties has also found that no allegation of false claim was raised. 14. The Division Bench of this Court in the case of Mostt. Laganmani Kuar (supra), has held as follows: One it is held that the decision in the proceeding under Order IX, Rule 13 is res-judicata, the question as to the falsity of the claim does not arise. If the plaintiffs, notwithstanding, the service of summons upon them in the former suit did not choose to appear and contest the suit, they cannot now be allowed to urge that the ex-parte decree should be set aside on the round that the claim was false. The question as to the falsity of the claim does not by itself constitute fraud. It has been held in a series of cases of this Court that this question can be gone into only to make the case of fraud probable and to show why the fraud was committed. 15. As noticed above, from Ext. D it is abundantly clear that the plaintiffs/respondents had due knowledge of filing of the partition Suit No. 33/67 inasmuch as when the said suit was filed in the Court of the Munsif in the year 1963 their predecessor in interest contested the suit in the valuation matter and ultimately the plaint was allowed to be returned for filing the same before appropriate forum. Thus, in my view, the learned trial Court has correctly found that the plaintiffs/respondents were aware of the filing of the suit and the findings recorded in Ext. D are res-judicata. 16. The decision in the case of Haricharan Rai (supra), relied by Mr. N.K. Prasad is Casily distinguishable. Admittedly in that case no petition under Order IX, Rule 13 of the Code was filed prior to filing of the suit and thus the Court, on that background held that the decree once passed cannot be challenged by a separate suit except in the background of fraud practised on the Court. In my view, the learned lower appellate Court has misdirected itself in appreciating the decision rendered in Haricharan Rais case. In my view, the learned lower appellate Court has misdirected itself in appreciating the decision rendered in Haricharan Rais case. There is no finding of the lower appellate Court that any such fraud was practised on the Court which entitled the plaintiffs/respondents to file the suit even after rejection of the application under Order IX, Rule 13 of the Code. Moreover, the lower appellate Court has not taken into consideration the glaring fact that it was the plaintiffs/respondents who suppressed the material facts before the Court by not disclosing in their plaint that previously their petitioner under Order IX Rule 13 of the Code was dismissed. Under this circumstance, the finding on the point of res-judicata arrived at by the lower appellate Court cannot be sustained. 17. Now coming to the question of limitation, admittedly, title Suit No. 33/67 was decreed ex-parte and, thereafter, the application under Order IX, Rule 13 of the Code was filed for setting aside the said decree which gave rise to Misc. Case No. 32/68. This was dismissed on merit on 10.7.1969 and in that suit the plaintiffs/respondents (plaintiffs in T.S. 32/74) were the parties. The right to sue, under this circumstance, arose immediately after dismissal of the said Misc. Case i.e., in July, 1969. Thus the present suit having been filed on 22.5.1974, is beyond the period of limitation of three years and, as such, it must be held that the suit was barred by limitation. The argument of Mr. N.K. Prasad that Dukhni vas plaintiff No. 2 in the present suit and not in Misc. Case No. 32/68, is apparently misconceived because the Court below has committed an error of record inasmuch as Dukhni was a party in Misc. Case No. 32/68 along with her brother, Ratoo. That being the position, in my view, the appeal must succeed on this ground also. 18. In the result, this appeal is allowed. The judgment and decree of the lower appellate Court dated 7th August, 1981 is set aside and that of the trial Court dated 31st August, 1976 is confirmed.