Sibghat Ullah Khan, J.;— Heard learned counsel for the parties. Late Sri Ram Lakhan since deceased and survived by the petitioners instituted O.S. no.303 of 1990 against Bhikhai since deceased and survived by the three respondents his daughters for specific performance of an agreement for sale alleged to have been executed by Bhikhai in favour of Ram Lakhan on 3.10.1975. The suit was decreed ex parte on 29.4.1994. Thereafter execution application was filed (Ex case no.10 of 1994) and the execution Court executed the sale deed on behalf of Bhikhai in favour of the petitioner on 14.2.1996. However, after execution of the sale deed the execution was not struck off in full satisfaction of the decree as proceedings for possession were going on. Sri Bhikhai died on 17.6.1997. On his death Hoob Lal was sought to be substituted at his place through application dated 5.7.1997 on the ground that Bhikhai had executed a will in favour of Hoob Lal on 3.11.1996. Respondents 1 and 2 Sushila Devi and Jai Devi daughters of Bhikhai also filed substitution application on 21/22.7.1997 stating therein that they were daughters of Bhikhai who had also executed a sale deed in their favour on 28.7.1994. Respondents no. 1 and 2 also filed restoration application on the same date i.e. 21/22.7.1997 under Order IX Rule 13 C.P.C. praying for setting aside of the ex-parte decree dated 29.4.1994 which was registered as misc. case no.67 of 1997. However, respondent no.3 Shyama Devi the third daughter of Bhikhai did not support his sisters respondents no. 1 and 2 and filed objections against them on 17.3.1998 to their restoration application. Substitution application filed by Ram Lakhan seeking substitution of Hoob Lal in the execution case was allowed on 1.8.1997 by the executing Court without noticing substitution application which had been filed by respondents no. 1 and 2 on 21/22.7.1997. Executing Court/Civil Judge (J.D.), Bhadoi, Gyanpur through order dated 20.11.1998 allowed the substitution application/objections of respondent no. 1 and 2 dated 21/22.7.1997 and directed Ram Lakhan the decree holder to implead/substitute in the execution case respondent nos. 1 and 2 also, so that they could also be heard before considering the question of delivery of possession. Against the order dated 20.11.1998 directing substitution of respondents no. 1 and 2 in the execution case petitioners filed revision in the form of Civil Revision no.112 of 1998. 1 and 2 also, so that they could also be heard before considering the question of delivery of possession. Against the order dated 20.11.1998 directing substitution of respondents no. 1 and 2 in the execution case petitioners filed revision in the form of Civil Revision no.112 of 1998. A.D.J. Court no.2, Bhadoi, Gyanpur allowed the revision through order dated 6.2.2002. (Annexure 17 to the writ petition). Against the said order respondent nos. 1 and 2 filed writ petition no.11929 of 2002 which was dismissed by this Court on 20.3.2002 Annexure 18 to the writ petition. This High Court in its order dated 20.3.1982 held as follows: "I am of the opinion that these two points claimed by the petitioner and respondent no.6 are of no avail in the execution proceedings because both these two rights stand superseded by the decree passed against the deceased-defendant after which decree, the deceased-defendant had no right left in himself to transfer the property by sale-deed or devolution". The two points which were noticed in the earlier part of the judgment were that firstly Sushila Devi and Jai had purchased the property from Bhikhai and secondly they were the daughters of Bhikhai. On 31.8.2001 petitioners filed objections against restoration application which had been filed by respondent no. 1 and 2 in the form of Misc. case no.67 of 1997. Restoration application was rejected by trial court on 10.10.2001. Against the said order respondent no. 1 and 2 filed Misc. civil appeal no.82 of 2001. which was allowed by A.D.J. Court no.3, Bhadoi, Gyanpur. On 31.7.2007 order of the trial court rejecting restoration application was set aside, restoration application was allowed and ex-parte decree dated 29.4.1994 was set aside and the suit was directed to be decided after hearing the parties. The order dated 31.7.2007 has been challenged through this writ petition. The most important point on the basis of which trial court rejected the restoration application and which was vehemently argued before the lower appellate court as well as in this writ petition is that the judgment dated 20.3.2002 passed by this court operated as res judicata. I am unable to accept this argument. In the judgment dated 20.3.2002 it was held that as every thing had been done including execution of the sale deed by the Court hence nothing remained to be decided. I am unable to accept this argument. In the judgment dated 20.3.2002 it was held that as every thing had been done including execution of the sale deed by the Court hence nothing remained to be decided. In the said judgment not a single word was said about the correctness or otherwise of the ex parte decree. As far as the findings of the lower appellate court in the impugned judgment that Bhikhai had no knowledge of the decree is concerned I do not find any error in the said findings. Service was affected through refusal and publication. Bhikhai was illiterate. The suit had been filed after 15 years of the alleged agreement for sale. The supreme Court in M.K. Prasad Vs. P Arumugam AIR 2001 S.C. 2497 has held that while deciding restoration application court should keep in mind the nature of the ex-parte judgment extent of property involved and stake of the parties. In the said case restoration application had been rejected by the trial court. Revision filed against the same had also been dismissed by the High Court, however the Supreme Court allowed the appeal and allowed the restoration application. In the instant case also filing of suit after 15 years was some what unusual. The trial court did not advert to this aspect of filing of suit after 15 years in the ex parte judgment dated 29.4.1994 which is in two pages only. First plaint allegation were summarised then it was mentioned that the suit had been directed to proceed ex parte, thereafter, only in the four lines it was mentioned that plaintiff in support of his case had filed Khatauni and photo state copy of the agreement and affidavit. Even in ex-parte judgment some reasons are to be given. Moreover on the basis of photo state copy of the agreement suit could not be decreed. There is no mention in the judgment that photo state copy was admissible as secondary evidence. One more point was forcibly argued by the petitioners before the trial court, lower appellate court as well as this court and that was regarding institution of O.S. no.630 of 1996 jointly by Ram Lakhan and Bhikhai against third parties for injunction. That suit was filed on 19.11.1996. Copy of the plaint of that suit is Annexure 5 to the writ petition. That suit was filed on 19.11.1996. Copy of the plaint of that suit is Annexure 5 to the writ petition. In para 6 of the said plaint it was mentioned that plaintiff no.1 (Bhikhai) had executed an agreement for sale in favour of plaintiff no.2, Ram Lakhan and on that basis plaintiff no.2, filed a suit before Civil Court which was decreed and executing court had executed the sale deed. The lower appellate court has rightly held that there was absolutely no need to mention the said fact in the said suit and as Bhikhai was illiterate hence this fact was mentioned only to crate an evidence of knowledge of the suit and decree to Bhikhai. Moreover, in para 6 of the said suit neither date of agreement was mentioned nor number of suit was mentioned nor date of decree or the court which passed the decree was mentioned nor the date of execution of the sale deed by the Court was mentioned. Looked from the another angle this fact goes against the petitioner Ram Lakhan himself. If Bhikhai was so close to Ram Lakhan who was his nephew that both of them filed suit jointly against Sheetala and Ram Milan then there was no need for Bhikhai to compel Ram Lakhan to file suit for the execution of the agreement and then further compel him to approach the executing court to execute the sale deed. In any case even on the date of filing of the said suit execution proceedings for possession were pending. In case Bhikai was aware of the decree and had no objection to that, he would have willingly delivered possession. In any case Supreme Court in Sushil Kumar Samval Vs. Gurpreet Singh AIR 2002 SC 2370 has held that even if in some other proceedings defendant against whom a suit had been decreed ex parte admitted the knowledge of pendency of the case still it was not sufficient as it could not be equated with knowledge of date of hearing in the said case also. Order of the trial court as well as High Court rejecting restoration application was set aside by the Supreme Court. In the impugned order the lower appellate court held that the process surver had mentioned that in the presence of Rajendra Singh and Krishna Kumar Singh Bhikhai had refused to accept notices on 26.7.1992. Order of the trial court as well as High Court rejecting restoration application was set aside by the Supreme Court. In the impugned order the lower appellate court held that the process surver had mentioned that in the presence of Rajendra Singh and Krishna Kumar Singh Bhikhai had refused to accept notices on 26.7.1992. Both these persons afterwards filed affidavits stating that process surver never attempted to serve summons upon Bhikhai in their presence. As far as services of summons through registered post is concerned (which contained endorsement of refusal) Lower appellate court has held that it contained cutting and overwriting. Accordingly, I do not find least error in the impugned order holding that service was not affected upon Bhikhai. However, there is one aspect of the mater which requires to be decided in favour of the petitioners. The lower appellate court recorded the findings that the agreement was not executed by Bhikhai in favour of Ram Lakhan. This finding was utterly uncalled for and completely without jurisdiction. Merit of the suit can not be decided in restoration application. The allegation etc. may prima facie be seen only with a view to decide the restoration application. Accordingly, impugned judgement and order dated 31.7.2007 is substantially approved and it is held that the ex-parte decree has rightly been set aside by the said judgment and order. However, finding regarding non execution of agreement by Bhikhai in favour of Ram Lakhan are set aside. Let this aspect be decided in the suit. The trial court after perusing the evidence and hearing the learned counsel for the parties shall decide as to whether agreement was executed or not. Any findings on merit of the suit while deciding restoration application either recorded by the trial court or lower appellate court or in this judgment shall not at all be taken into consideration by the trial court. Both the parties are directed to appear before trial court on 25.2.2013. Writ petition is accordingly disposed of. _____________