ORDER 1. Leave granted. 2. A suit was filed in 1999 by the respondent against the appellant for evicting the appellant. The property admittedly belonged to the appellants father. The claim of the respondent-plaintiff was that the property had been bequeathed to him by the appellants father under a will. The suit was decreed ex parte on 25-5-2001. The decree was put to execution on 6-7-2001. 9 It is claimed that the bailiff went to take possession of the suit property by evicting the appellant. According to the appellant, he came to know about the ex parte decree for the first time on that date. There is some dispute as to the date on which the possession was sought to be taken. Be that as it may, on the allegation that the appellant got knowledge of the ex parte decree for the first time on that date the appellant moved an application under Order 9 Rule 13 for recalling the ex parte decree dated 25-5-2001. The trial court passed an interim order on 19-12-2003 in which a prima facie conclusion was arrived that there had been no service effected on the defendant and that the defendant was not aware of the suit. It was held that therefore the decree needed to be stayed pending disposal of the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908. A date was fixed for the filing of objections. 3. Being aggrieved by this interim order the respondent preferred a civil revision petition. It was argued by the respondent before the revisional court that the appellant had filed an appeal against the ex parte decree and that the same had been dismissed on 25-4-2003 for non-prosecution and therefore, the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 was not maintainable. The appellant, however, stated before the revisional court that they had not filed any appeal but that the respondent had done so by playing fraud on the court in order to defeat the appellants right under Order 9 Rule 13 CPC. The revisional court held that this was an issue which should be raised and decided by the trial court before which the application under Order 9 Rule 13 CPC was pending. 4. Being aggrieved by this order, the respondent filed a writ petition under Article 226 impugning the order of the revisional court. The revisional court held that this was an issue which should be raised and decided by the trial court before which the application under Order 9 Rule 13 CPC was pending. 4. Being aggrieved by this order, the respondent filed a writ petition under Article 226 impugning the order of the revisional court. The writ petition was allowed and in effect the application under Order 9 Rule 13 rejected. Without expressing any opinion on the maintainability of the writ application, we are of the view that the order passed by the writ court setting aside the order of the revisional court cannot be sustained. According to the appellant the writ court disposed of the matter without giving any opportunity to the appellant of being heard. If this be so that would be an additional ground for setting aside the impugned order. We, however, rest our decision to allow the appeal on the erroneous reasoning of the High Court. The High Court allowed the writ petition solely on the ground that the appeal had in fact been filed by the appellant from the ex parte decree and that by virtue of the Explanation to the second proviso to Order 9 Rule 13 of the Code, an application under Order 9 Rule 13 was therefore not maintainable. In other words, the High Court assumed the fact which was to be adjudicated upon, namely, whether the appeal had been filed by the appellant or by the respondent. The High Court should not have attempted to determine this issue which the revisional court had correctly left to the trial court to determine. The High Court appears to have lost sight of the fact that the impugned order of the trial court was only an interim one before the filing of objections and that it was for the respondent to have raised whatever grounds he had for resisting the application under Order 9 Rule 13 in his objection for the purposes of it being decided by the trial court. In the circumstances, the order of the High Court is set aside. The order of the civil revisional court is restored. The matter is remanded back to the trial court for being heard after giving the respondent an opportunity to file his objections as may be applied for. In the circumstances, the order of the High Court is set aside. The order of the civil revisional court is restored. The matter is remanded back to the trial court for being heard after giving the respondent an opportunity to file his objections as may be applied for. We make it clear that we have not expressed any opinion on the merits of the disputes between the parties and that the parties will be at liberty to raise see all issues in the pending application under Order 9 Rule 13 of the Code of Civil Procedure; 1908. 5. The appeal is allowed. There shall be no order as to costs.