Khagesh Chandra vs Chandra Kanta Barua and Another

Sarjoo Prosad, C.J.—The only point for consideration in this Civil Revision is whether the Court had jurisdiction under Order 9, Rule 13, Code of Civil Procedure, to set aside a decree under which the suit had been dismissed on contest against one of the Defendants and decreed ex parte against the other, and restore the whole suit for fresh trial against both the Defendants.

The relevant facts are that the Plaintiff Bank, which is Opposite Party No. 2 in this application, instituted Money Suit No. 34 of 1946 in the Court of the Additional Subordinate Judge at Tezpur for recovery of a certain sum of money as against the Petitioner and Opposite Party No. 1. The case of the Plaintiff, in effect, was that the Defendants to the suit had opened a Cash Credit Account with its Tezpur branch in order to get accommodation loan to the extent of Rs. 15,000/-with interest, to enable them to carry on certain contract transactions. The Plaintiff stated that on 26-10-46, when the transactions were closed, a debit balance, inclusive of interest, to the extent of the amount claimed was found outstanding; and since the amount had not been paid, the Plaintiff prayed for a decree against both the Defendants making them jointly and severally liable.

The Petitioner and Opposite Party No. 1 filed separate Written Statements in the suit. The Petitioner, in substance, pleaded that he and Opposite Party No. 1 had formed a partnership to carry on contract work with the Forest Department of the Government of Assam and for that purpose opened an overdraft account with the Plaintiff Bank in order to get accommodation loans. They had also executed a power of attorney in favour of the Bank authorising it to collect all the money due on their bills from the forest Department and to credit the same to their accounts. On completion of the contract work, the partnership was dissolved. After adjustment of the amounts credited, a certain sum of money was found, due to the Plaintiff; and all the parties, including the Plaintiff, agreed that the Petitioner and the. Opposite Party No. 1, the other Defendant should pay each on his part half the amount due. In accordance with that arrangement, the Petitioner paid to the Plaintiff Bank the amount for which he was liable in respect of his half share, and the Plaintiff Bank discharged the Petitioner from all liability under a receipt, dated, 22-12-44.

The Opposite Party No. 1 in his written statement pleaded, inter alia, that the interest claimed in the suit was excessive and admitted that out of the amount claimed, he was liable to pay only half the amount, and the liability for the other half was upon the other, Defendant, if any. On 29-8-51, when the suit was, taken up for hearing, it was dismissed on contest against the Petitioner but decreed ex parte against Opposite Party, No. 1 for Rs. 4,000/- with costs." Evidence was given in the case on behalf of the Plaintiff and the Petitioner, on the basis of which the Court held that the Bank had agreed to the dissolution of the partnership and accepted from the Petitioner the amount payable by him and, therefore, the Petitioner was absolved from the liability of any further payment. The suit was, on these findings, decreed only against Opposite Party No. 1 who was held liable separately for the amount decreed.

The Opposite Party No. 1 then filed an application on 26-9-51 for setting aside the ex parte decree, and the learned Subordinate Judge, by his-order, dated 5-6-52, not only set aside the ex parte decree against Opposite Party No. 1 but also the decree dismissing the suit against the Petitioner, and restored the whole suit for re-trial against both sets of Defendants. In doing so, the Court observed

that the relief to which the Applicant is entitled in the suit could not effectively be given otherwise than by setting aside the decree as against the other Defendant....

The word ''Applicant'' in the quotation is probably a mistake for the word ''Plaintiff. It is against this order that the present petition in revision is directed.

It is contended for the Petitioner that the order in question is entirely without jurisdiction. The suit having been heard on merits in the presence of the Petitioner and the Plaintiff, and evidence having been led by both sides, the Court decided in favour of the Defendant and held that the Plaintiff''s claim against this Petitioner was unfounded. The Plaintiff was satisfied with this decree and did not prefer any appeal. The learned Subordinate Judge, therefore, had no jurisdiction under Order 9, Rule 13, Code of Civil Procedure, to set aside this-decree which was not a decree against the Petitioner, but in his favour. It is also urged that in any case the nature of the decree itself showed, and so did the pleading of the Defendants Opposite Party, that the liability of the two Defendants was-separate and, therefore, the whole decree could not be set aside.

The language of Rule 13 of Order 9, Code of Civil Procedure, is specific and clear. The introductory part of the Rule is "setting aside decree ex parte ''against Defendant''." (The Underlines; here in are mine). The Rule evidently postulates that the decree should be against the Defendant, and not in his favour, in order to attract the operation of the Rule. The substantive part of the Rule also is to the same effect. It reads:

In any case in which a decree is passed ex parte against a Defendant, he may apply to the Court, etc.

The privilege given under the Rule for applying for setting aside the ex parte decree is to the Defendant against whom an ex parte decree has been passed. Emphasis lies on the word ''against''. This privilege can be availed of by the Defendant in appropriate cases mentioned in the Rule and if the Court is satisfied, the decree against that Defendant may be set aside and the suit ordered to be heard. In the context, it appears to me that the suit means the suit in so far as it affects the liability of that particular Defendant, & not the whole suit, including even such Defendants in whose Savor the suit may have been dismissed and their liability determined. The rule is subject to the-proviso which enlarges the power of the Court to set aside the decree even against all or any of the other Defendants where the decree is of such a nature that it cannot be set aside as against the applying Defendant only. If the word ''decree'' or ''suit'' in the first part of the Rule referred to the ''whole suit'' and the ''whole decree'', then the words "as against him" and the proviso would be redundant, because in that event, in any case where the application under the Rule succeeds the whole decree will have to go and the whole suit will have to be re-tried.

The evolution of the law culminating in the introduction of the proviso by the Act of 1908 is interesting and I shall refer to it in due course. There may be cases where the liability of the Defendants cannot be split up and where the decree is one and indivisible. It is only in such cases that to meet the ends of justice, the proviso came into being in order to enable the Court to set aside the ex parte decree in favour of the Plaintiff, not only against the Defendant who has applied under Order 9, Rule 13, Code of Civil Procedure, but also as against the other Defendants. But the Rule or the proviso, in my opinion, does not confer any jurisdiction upon the Court to reverse a decree dismissing the suit of the Plaintiff as against some of the Defendants imperiling thereby the interest of those Defendants also by reopening the whole suit. This Rule confers a privilege upon the Defendants against whom an adverse, decree has been passed ex parte and does not impose a disability on them and that also at the instance of a Co-Defendant. In the absence of any appeal by the Plaintiff, to whose prejudice the decree has been passed on merits and under which the successful Defendant has acquired a valuable right, I cannot hold that in a collateral proceeding at the instance of a co-Defendant, the decree can be set aside.

The scheme of Order 9, Code of Civil Procedure, itself shows that there is a separate procedure for setting aside the dismissal of a suit for Plaintiff''s default, and for rehearing the suit on merits, in juxtaposition to the procedure for setting aside an ex parte decree against the Defendant where the latter has defaulted for any sufficient reason. The provisions of the Order do not, in my opinion, ordinarily apply to cases where there is a decree for or against the Defendant on the merits of the case and after hearing the parties. In that view of the matter also, the proviso to Rule 13 of the Order has to be strictly construed. Barring a few cases, to which reference has been made by the learned Counsel for the Opposite Party, I have not come across any other case where the Court has been validly allowed to exercise any such jurisdiction under cover of the proviso to Rule 13 of Order 9, CPC In fact, the cases are all to the contrary and relate to decrees in favour of the Plaintiff and against the Defendants and not vice versa.

Under the old Section 108, Code of Civil Procedure, as it, stood prior to the amendment of 1908, which corresponded to the present Rule, there was some conflict as to whether the decree should be set aside only against the Defendant who made the application, or it should be set aside as a whole. Some Courts took the view that even if there was a common cause of action against all the Defendants and the suit proceeded on a ground common, to all, yet the ex parte decree could be set aside-only against the Defendant who was found entitled to apply within the words of the section and the-whole suit could not be re-opened so as to benefit-even those Defendants who were present and resisted the claim of the Plaintiff, though unsuccessfully.

To this group belong the cases which are illustrated by the decision in -- ''Manaku Kom Pedru v. Sitaram Atmaram Vagh'' 18 Bom 142 (A). In that case, a suit had been instituted for recovery of money due upon a promissory note jointly executed by two persons. One of the Defendants appeared and resisted the claim, but the other was absent. The Court decreed the suit against both the Defendants. The absentee Defendant then applied for setting aside the decree. It was held that although there was a common cause of action against both the Defendants, the suit could not be restored as against those who had appeared and resisted the Plaintiff''s claim and in whose presence the decree had been passed. This decision was as early as 1893.

The other view was radically opposite. It held that the language of Section 108, Code of Civil Procedure, showed that the words ''decree'' and ''suit'' had been used in the widest possible sense and, therefore, the whole suit had to be restored even in favour of those Defendants who had not applied, or who contested but failed to resist the claim of the Plaintiff. This view is illustrated by the decision in. ''Mahomed Hamidulla v. Tohurennessa Bibi'' 25 Call 155 (B). Here again the suit was brought against two sets of Defendants upon a promissory note-executed by two persons, one of whom died before the suit was filed. The suit was instituted against the surviving maker of the note and the heirs of the other. Two of the heirs were ''purdanasin'' women, and it appears that summonses were not served on them. The decree was made ex parte against them. The two Defendants on whom summonses were not served, applied u/s 108 of the Code to have the decree set aside. The application was granted and the decree was set aside not only against these Applicants but also as against the other Defendants who had appeared and defended the suit. The Court held that the order setting aside the entire decree -was valid. Maclean, C.J., expressed himself somewhat broadly on the point. He observed thus:

The language is imperative, "shall set aside the decree". Now, what does "the decree" mean? It must, I think, mean the decree, the whole decree, made in the suit. It does not say part of the decree; it does not say that part of the decree, but it uses the words "the decree". Read according to their ordinary signification and natural meaning, the words must mean, I think, that the Court shall set aside the whole decree; and that view is strengthened, I consider, by the last words of the section, viz: "and the Court shall appoint a day for proceeding with the suit". The suit would appear to mean the whole suit, not merely the suit as against or so far as it affected the particular Defendants making the application, taut the whole suit. There seems to me reason in this view of the section.

Banerjee, J., the other learned Judge who was a party to the decision, was, if I may say so, perhaps more cautious in his interpretation of Section 108. He stated the law thus:

It may often happen that the setting aside of the decree as regards some of the Defendants renders it necessary in the interest of justice that the whole decree should be reopened; and the present case is an instance in point. Here, of the two parties who entered appearance, one was one of the executants of the promissory note on which the suit is based, and the other was one of the three persons who are now sued as the legal representatives of another executant of the note, now deceased; and if the decree were to stand as against the Defendants who entered appearance, and be set aside only as regards the Defendants who did not enter appearance, then, in the event of the suit being dismissed as against the latter, the result would be obviously hard as against the Defendant who is sued as one of the heirs of the deceased executant of the note and who had entered appearance at the original hearing. It is to avoid complications like this that the legislature may have thought it fit to allow a decree made ex parte as against some of the Defendants to be set aside in its entirety upon their application, if the requirements of Section 108 of the Code are satisfied.

We have thus two divergent views: one typified by the above Bombay decision and the other by this Calcutta decision. It is, however, important to remember that in both these cases, the decree was ''as against'' all the Defendants, and not a decree ''in favour of some of the Defendants.

Maclean, C. J. felt it necessary shortly afterwards to modify his views in a later Special Bench decision of that Court in -- ''Monomohini Chowdhurani v. Nara Narayan Roy'' 4 Cal WN 458 (C). The logical result of his opinion so broadly expressed in the earlier case was that in an application u/s 108, if the application succeeded, the whole decree had to be set aside and the whole suit had to be reheard; so that in every case of this nature, the Court was bound to rehear the whole suit. This was not what Section 108 intended, and it had to be reviewed in the later case under somewhat peculiar circumstances. There the Plaintiff had instituted a suit for declaration of, title and possession against several Defendants. The suit was contested by only two of them and the Plaintiff obtained a decree against them, and ex parte against the rest. The contesting Defendants appealed & filed a Second Appeal, but were unsuccessful. The other Defendants against whom the decree was ex parte, applied for setting aside the decree u/s 108, CPC The Munsiff ordered the decree to be set aside and the suit to be restored, and the contesting Defendants were allowed to defend the suit de novo. This was in consonance with the rule laid down in ''Mahomed Hamidulla''s case, (B)'' (ibid); but the Plaintiff moved against the order restoring the whole suit, and the Special Bench held that the whole decree could not be set aside. The learned Chief Justice, in dealing with his earlier decision, observed as follows:

The remarks I made there were remarks made in relation to the particular circumstances of the particular case which was then before us, and the present case is fairly distinguished not only upon the ground I have already stated, but upon the further ground that although the decree here may have been engrossed on one and the same piece of papery, and was nominally one, it. was virtually two decrees, one for a declaration of title as against Defendants 1 and 2, the other for khas possession against the tenant Defendants. The case of ''Mahomed Hamidulla v. Tohurennissa Bibi (B)'', was of a different nature altogether. In that case, there was only one decree, one & undivisible, as my learned brother pointed out, & we did not see how, under such circumstances, and having regard to the language of Section 108, it could be set aside, otherwise than in its entirety.

Banerjee, J., also clarified the position thus:

Then as to the second point, it is true that in the case referred to, this Court held that where a decree is made ex parte against some of several Defendants against whom the suit is brought, and the non-appearing Defendants apply u/s 108 of the Code to set aside that decree, the Court has power to set aside the entire decree; and that I do not think that this Court was called upon in that case to decide, whether, in every such case, the Court is bound to set aside the whole decree. On the contrary, I find an express reservation of opinion in one of the two judgments delivered in that case in regard to one class of cases namely, the class in which a decree, though nominally one, really consists of several decrees against several parties; and the present case clearly comes within that description.

The learned Judges thus rested their decision on the principle that although on paper there may be one decree, in substance, there may be several decrees against various sets of Defendants. On the authority of this Special Bench decision, it is quite clear that in those cases where separate decrees can be passed and have been passed against individual sets of Defendants, the Court has no power to set aside the entire decree and restore the whole suit, purporting to do so within the provisions of Section 108, of the old Code of Civil Procedure, or, as I have said, under Order 9, Rule 13 of the present Code.

A few years later, in 1902, there was a Full Bench decision of the Allahabad High Court in -- ''Bhura Mal v. Har Kishan Das'' 24 All 383 (D) which sought to reconcile the two extreme views stated above, Here the suit was against three Defendants, the second and the third being minors, and the first Defendant was named as their guardian. The first Defendant entered appearance, but no order was made appointing any guardian-ad-litem for the minors. On the date of hearing, none of the Defendants appeared and the Court passed an ex parte decree against all. An application was then made for setting aside the ex parte decree u/s 108, Code of Civil Procedure, on behalf of the minors. It was held that the applications should be allowed and where the decree was of such a nature as to be indivisible, as it was in that case, it should be set aside in its entirety. Stanley, C. J. was inclined to the view that on the language of Section 108, the decree to be set aside is primarily the whole decree and the suit to be proceeded with is the whole suit; though where a decree passed against several Defendants consists, in reality, of separate decree against each, it may be that the decree can be set aside in part. Aikman, J., was, however, inclined to the other view and held that Section 108, CPC primarily applies only so far as the particular Defendant, who seeks to get an ex parte decree against him, set aside, is concerned; though under certain circumstances, it may be necessary in the interest of justice that the whole decree should be re-opened. Thus when the decree is one and indivisible, it had to be set aside as a whole or not at all.

In other words, according to Aikman, J., the setting aside of the whole decree was an exception to the rule, and the exception would apply only where the decree was, by its very nature indivisible or where in the ends of justice it had to be done, because otherwise it would be impossible to give relief to the Plaintiff. The observations of the learned Judges in the above Full Bench eases reflected the change in the law in 1908, and the exception pointed out above was embodied in the proviso to Rule 13 of Order 9 of the Code.

I cannot close my discussion of the law as it stood prior to 1908 without a reference to the decision in ''In re Hari Das Karmakar'' 5 Cal LJ 202 (E) on Which great stress has been laid for the Opposite Party; and rightly, because in that case the decree in favour of one of the Defendants was set aside to his prejudice. This is perhaps the only solitary instance arising u/s 108 of the old Code of Civil Procedure, in which the Court purported to assume a jurisdiction of this nature within the meaning of that section. The Plaintiff in that case sued the Defendants for recovery of a certain amount of consideration which had remained unpaid. According to his case, a part of the money was payable by Defendants 1 to 3 and the rest by the Defendant No. 4, and in respect of the payment he had obtained a bond from Defendants 1 to 3. He, therefore, wanted a decree against the Defendants for payment of the amounts contracted for, or in the alternative, for the entire sum to be paid by Defendants 1 to 3. All the Defendants pleaded payment. An ex parte decree was eventually passed against Defendants 1 to 3 for the entire sum and the other Defendant was discharged from liability. The Plaintiff was satisfied with that decision, but Defendants 1 to 3 applied u/s 108, to have the ex parte decree against them set aside. The Court ordered notices to issue on the parties, including Defendant No. 4, and in the presence of all the parties, the entire decree was set aside and the suit ordered to be re-tried, and eventually a decree was passed against Defendants 1 to 3 for the amount claimed against them and against Defendant No. 4 also for the entire balance.

Defendant 4 then moved against the decree on the ground that the suit having been dismissed against him, No. fresh decree could be passed by the Small Cause Court. The learned Judges followed the decision in ''Mahomed Hamidulla''s case (B)'' (ibid) and held that the whole decree had to be set aside. There is nothing to show that the Attention of the learned Judges was drawn to the subsequent Special Bench decision of the same Court in ''Monomohini Chaudhurani''s case (C)'' where the extreme view of the law laid down in the earlier decision was, as I have already indicated, considerably modified, and it was observed that where in substance the decree is against different sets of Defendants individually, the whole suit could not be necessarily reopened u/s 108 of the Code. It would be useful to notice, however, that the learned Judges pointed out that as a matter of fact the Defendants did not set up separate defence but pleaded payment and, as the record showed, they were represented by one and the same pleader. They observed that it was, therefore, a case either of joint or several liability and if it had to be reconsidered at all, it must be reconsidered as a whole and in the presence of all the Defendants. The decision may or may not be justified on its own facts, but it is no authority for laying down any proposition of law beyond what was already stated in Mahomed Hamidulla''s case (B)''. The learned Judges, if 1 may respect-'' fully say so, failed to notice that the case had a distinctive feature, namely, that the decree against Defendant 4 was a decree in his favour discharging him from liability and, in effect, rejecting the Plaintiff''s claim against him. The decision, there-fore, cannot be a guide on the point under investigation, specially when it suffers from the same weakness as the decision in -- ''Mahomed Hami-dulla''s case (B)'', Which it literally followed.

Under the present Code of Civil Procedure, in 1908, two significant changes were effected in the Rule. The words "as against him" were added after the words "shall make an order setting aside the decree", and the ''proviso'' to the Rule was also added. These changes left no room for doubt that as a general rule, the decree was to be set aside as against; the person making the application under Order 9, Rule 13, Code of Civil Procedure, but in exceptional cases contemplated by the proviso it could be set aside against all or any of the other Defendants; but in my opinion, the governing postulate in any case remained that the decree to be set aside must be a decree ''against'' the Defendants, and not a decree in their ''favour''.

The decision in -- ''Ghannu Mal v. Sant Das'' 18 Ind Cas 327 (Lah)(F) is a case almost parallel to the present case. There A sued B and C. The suit was dismissed as against B and an ex parte decree was passed as against C. The application of C to set aside the ex parte proceedings was rejected. C appealed against that order, but A took no steps to appeal against that part of the decree which dismissed the suit as against B. The appellate Court, by its final order, re-opened the case against B as well as C. It was held that the order so far as C was concerned, was clearly without jurisdiction inasmuch as the proviso to Rule 13 of Order 9 did not apply to the case of a Defendant against whom the suit has been dismissed on the merits without appeal by the Plaintiff. The decision is of course, by a single Judge, but in my opinion, correctly formulates the law on the point.

The decision in -- ''Suryaprakash Rao v. Shriramuiu'' AIR 1931 Mad 6 (G) was a case where the liability was a joint liability based on a common ground, and, therefore, the whole decree required to be set aside. Similarly the decision in -- Kedar Nath Singh Vs. Kesri Mull and Others, was a case of a mortgage decree and the mortgage debt being one and indivisible, the decree on the basis of the mortgage could not be set aside in part; and so was the case in -- P.A. Munusami Reddi and Others Vs. C.N. Thirunavukkarasu Mudaliar and Another, where the sale affected the interest of all co-sharers.

As I have said, in all those cases, where the decree, by its nature, is indivisible and has been passed against all the Defendants, the decree has to be set aside on the authority of the proviso to the Rule in its entirety; but there is no warrant for the assumption that where the decree is one of dismissal of the suit against some of the Defendants, yet the proviso would come into play.

I should on this topic refer to another decision in -- Ram Baran Vs. Bodh Ram and Others, where a Judge of the Allahabad High Court, sitting singly, took the view that even if the suit was dismissed on contest against one of the Defendants, but decreed ex parte against the others, in an application under Order 9, Rule 13, the whole decree could be set aside on the ground that the decree was one and indivisible. The learned Judge appears to have relied on the Pull Bench decision of that Court in ''Bhuramal''s case (D)'' (ibid). If I may respectfully observe, he appears to have been under some misapprehension that ''Bhuramal''s case (D)'' was decided when the proviso to the Rule was in existence and he prpobably lost sight of the fact that that decision was under the old Section 108 of the Code. I venture to think so on account of the following observation which appears in the judgment:

It is sufficient for the purposes of the present case to say that if the proviso to Rule 13 of Order 9, Code of Civil Procedure, can be used in the circumstances described in the case which came before the Pull Bench, the Court cannot be acting irregularly in using that proviso in the present case.

Moreover, in ''Bhuramal''s case (D)'', the decree set aside was against all the Defendants. I am, therefore, not prepared to accept that this decision correctly lays down the law.

In -- Radhashyam Choudhury and Others Vs. Gourinath Roy and Others, Sen, J., under similar circumstances expressed a contrary view. There a suit for rent was dismissed as against three of the Defendants, but decreed ex parte against another who had filed no written statement in the suit. This Defendant moved against the ex parte decree, and the decree was set aside and re-trial ordered. On re-trial, the suit was decreed against all the Defendants, including those against whom it had been dismissed. It was held that the decree dismissing the suit could not be set aside collaterally. The case is, of course, not based on an interpretation of Order 9, Rule 13 of the Code, but certainly lays down a general principle.

An analysis of the cases which I have discussed above will go to show that there are only two cases -- one before the Amendment of 1908 and another subsequent to it -- ''5 Cal LJ 202 (E)'', and -- Ram Baran Vs. Bodh Ram and Others, where the Courts went to the length of setting aside a decree which was in favour of some of the Defendants, dismissing the Plaintiff''s claim against them. I have already discussed those cases and given my reasons for holding that they cannot be regarded as authority on that point. There is no other decision brought to my notice where such a step has been taken. The decisions bearing on the proviso to the Rule in question, which have been succinctly classified under two broad heads in the well-known Commentaries of Mulla, all relate to instances where the suit had been decreed on contest or ex parte against some of the Defendants. Mulla says that the cases under the proviso fall into two classes:

I. Where the decree is ex parte against all the Defendants, but the application to set aside the decres made only by some of them.

II. Where against some of the Defendants, the decree is passed ex parte, but against others who have appeared and defended the suit, it is passed on the merits, and the application to set aside the decree is made by one or more of the Defendants against whom the decree was passed ex parte.

A scrutiny of all the cases under those classifications will bear out the result at which I have arrived. There is no case cited in which a decree in favour of a Defendant and against the Plaintiff was set aside under the proviso to the Rule.

In the present case, it is quite clear from the pleadings that the Opposite Party Defendant himself pleaded that the liability was separate. It is true that the Plaintiff laid his claim making both the Defendants jointly and severally liable, but on contest by the Defendant Petitioner, the Court held that the liability of the Petitioner was separate, and dismissed the Plaintiff''s claim accepting the Defendants'' case of discharge. Therefore, although there was on paper one decree, in substance, there were two decrees -- one against the Petitioner dismissing the Plaintiff''s suit and another against the Defendant Opposite Party decreeing the suit against him ex parte. The observation of the Court below to the contrary is clearly erroneous in view of the pleadings and the decree passed in the suit. The Court, therefore, had no jurisdiction in any case to set aside the whole decree and direct that the entire suit should be restored to its file to the prejudice of the Petitioner who had successfully contested the Plaintiff''s claim, and when the Plaintiff himself had preferred no appeal against that part of the decree.

The application, therefore, in my opinion, must succeed and. the order of the learned Subordinate Judge restoring the suit against the Petitioner and setting aside the decree dismissing the Plaintiff''s claim, in so far as the Petitioner is concerned, cannot stand. The Petitioner is entitled to his costs as against both the Opposite Parties-who have resisted this application; hearing fee Rupees one hundred.

I have since read the judgment prepared by my brother Deka, J. I am unable to see how the definition of the word "Decree'' affects the interpretation of Order 9, Rule 13, Code of Civil Procedure, in any different manner; nor is it explained what considerations of justice or equity arise against a Defendant in whose favour a decree on contest has been passed dismissing the suit. This difference, however, does not affect the view which we have eventually taken of the case.

Ram Labhaya, J.

This petition of revision is directed against an order of Mr. A. Hai, Additional Subordinate Judge, L.A.D. dated 5-6-52 by which he set aside the order of dismissal of the suit passed in favour of the present Petitioner on contest when setting aside an ex parte decree passed against Chandra Kanta Barua, opposite party who was a co-Defendant with the Petitioner in the suit instituted by Messrs. Gauhati Bank Limited.

The suit was for the recovery of a sum of Rs. 4,275/13/3 against the Defendant-Petitioner and Chandra Kanta Barua, Defendant No. 2 (Opposite party). The Petitioner contested the claim. His case was that under an arrangement with the Bank he had paid his share of the debt and he had been completely absolved frorn the responsibility. His plea prevailed and the suit against him was dismissed. Chandra Kanta Barua, the other Defendant did not appear after putting in a written statement. An ex parte decree was passed against him for the entire sum in his absence. He applied for setting aside the ex parte decree under Order 9, Rule 13, CPC The learned Additional Subordinate Judge came to the conclusion that there was sufficient cause for his absence and therefore the ex parte decree against him was liable to be set aside. He was further of the opinion that the nature of the defence necessitated the setting aside of that part of the decree which was in favour of the Defendant-Petitioner. He, therefore, set aside the entire decree.

The contention raised on behalf of the Petitioner is that the learned Additional Subordinate Judge had no jurisdiction to set aside that part of the decree by which the suit against the Petitioner was dismissed on contest. It is argued that Order 9 Rule 13 under which the petition for setting aside the decree was made has no application to a decree or a part of a decree in favour of a Defendant dismissing the suit against him on the merits after contest.

The heading under which Rule 13 of Order 9, CPC occurs is "Setting aside Decrees ex parte". The marginal note to Rule 13, Order 9 is setting aside decree ex parte against Defendant. In the body of the rule it is provided that

in any case in which 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 Court that the 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 upon such terms etc.

The rule itself applies in term only where a decree is passed ex parte and against a Defendant. Its application is attracted if the two requirements of the rule co-exist. The decree must be ex parte and it should be against a Defendant or Defendants. The words "as against him" after the words "shall make an order setting aside the decree" were inserted in the Rule by an amendment They bring out the intention of the Legislature which was that a decree was meant to be set aside at the instance of a Defendant against whom it has been passed unless of course the case is covered by the proviso.

The proviso to the Rule lays down that where the decree is of such a nature that it cannot be set aside against such a Defendant only, it may be set aside as against all or any of the other Defendants. This proviso empowers the Court to set aside the decree as against all or any of the Defendants where its nature is such that it cannot be set aside against the applying Defendant alone. The word ''decree'' in the proviso to the Rule should mean a decree of the nature contemplated by the Rule itself. If a decree of a different description was intended by the proviso, it should have been stated expressly. The same words used in two parts of the rule should carry the same meaning. When the proviso permits the setting aside of the decree affecting Defendants other than the one applying to have it set aside, the intention is that it has to be a decree against them. I do not discover anything in the language of the rule or the proviso which would go to indicate that a decree in favour of a Defendant discharging him from liability or dismissing the suit against him after contest, can also be set aside. In ''18 Ind Cas 327 (Lah)(F)'', it was held that the proviso to Order 9, Rule 13, did not apply to the case of a Defendant against whom a suit had been dismissed on the merits without appeal by the Plaintiff. A recent decision reported in Radhashyam Choudhury and Others Vs. Gourinath Roy and Others, also supports the view expressed in '' 18 Ind Cas 327(Lah)(F)''. In this case, the suit was for rent. It was dismissed against 3 Defendants but was decreed ex parte against the 4th Defendant. On the motion of the fourth Defendant, to which the other Defendants were not parties, a re-trial of the case was ordered. It was held that no decree could be passed against the first three Defendants in the subsequent trial as the suit had been dismissed against them.

In -- Attili Rajagopala Rao Vs. Sri A.V. Bhanoji Rao and Others, the suit was decreed ex parte against one Defendant; against others it was withdrawn. The decree in favour of Defendants against whom the suit was withdrawn was not set aside under Order 9, Rule 13, Code of Civil Procedure, on the application of the Defendant against whom the decree was ex parte. One reason given for the decision was that the decree was in favour of Defendants, and not against them. These authorities support the view that I take of the Rule even when seen in the light of the proviso.

Mr. Choudhuri on behalf of the Opposite Party (applying Defendant) contends that a decree, whether in favour or against a Defendant, even if passed after contest, can be set aside under the proviso to the Rule if the Court considers that it is of such a nature that it cannot be set aside as against the applying Defendant alone. He derives support for his contention from some decisions which I proceed to examine.

Of the cases relied on by Mr. Choudhuri the first in point of time is ''25 Cal 155 (B)''. This case was decided u/s ''108, CPC of 1882. The suit was against two sets of Defendants on a pro-note, executed by two persons. One of these was himself a Defendant, and the other having died, his heirs were sued as representatives. Two, out of these heirs, were purdanasin ladies. The decree against these two was ex parte. They applied to have it set aside. The decision turned on the language of Section 108 which was as follows:

In any case in which a decree is passed ex parte against a Defendant, he may apply to the Court by which the decree was made, for an order to set it aside, and if he satisfies the Court that the 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 pass an order to set aside the decree on such terms as to costs'', payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

The direction in the section was that the Court shall set aside the decree. Maclean, C. J., with whom Banerjee, J. agreed, held that the word decree meant the whole of the decree and, therefore, it could be set aside even against the Defendant who had entered appearance.

It may be noticed that the decree was against all the Defendants. The suit was not dismissed against any. This is the distinguishing feature of the case, for where such is the case, the decree sheet would virtually incorporate two decrees--one dismissing the suit and the other allowing the claim -- such a decree is not one decree. It is not in any sense a joint or an indivisible decree. It is in two parts which are antagonistic. The fact that two decrees are incorporated in one decree-sheet does not bring about'' any fusion.

The decision turned on the language of the section which has been reproduced above. The section provided for setting aside the decree. It did not lay down that it shall be set aside against the applying Defendant. These words were subsequently inserted in the Rule. They now form part of Order 9, Rule 13. It would thus appear that the very basis of the decision does not now exist. The mandate of the Rule now is that the decree shall be set aside against the applying Defendant, unless the proviso applies, in which case it may be set aside against the other Defendants. The ratio of the decision does not avail now. The proviso did not exist then and, therefore, could not be inter-preted. The value of the decision as a precedent is thus greatly impaired.

The next case relied upon is a Pull Bench decision of the Allahabad High Court reported in ''24 All 383 (D)''. In this case, the suit was against an adult and two minors. An ex parte decree was passed ''against all the three Defendants''. On behalf of the minors, an application for setting aside the decree was made. It was held that the decree had to toe set aside against all. As regards the adult Defendant, Stanley, C. J., referring to ''25 Cal 155(B)'' with approval, held that the decree in Section 108, Code of Civil Procedure, referred to the whole decree which would be set aside as a whole, and the suit to be proceeded with was also the entire suit. He, however, qualified the decision in ''25 Cal 155'' (B).'' by adding that he desired to express no opinion on a case in which a decree passed against some Defendants consists in reality, of ''separate decrees against each''. This qualifying clause would show to what extent the view taken was influenced by the language of the section as it then stood. It is noteworthy that the question whether the whole of the decree was to be set aside u/s 108 even if it was not joint and indivisible, was expressly left open. As observed above, where the suit is dismissed against some and decreed against others there would be no joint and indivisible decree. The decree would consist of two parts which are apparently separate.

Burkitt, J., while agreeing generally with the learned Chief Justice in the circumstances of the particular case, expressly refrained from expressing any opinion whatever on a case in which some of the several Defendants appeared and defended while the others, as to whom a decree had been passed ex parte made an application u/s 108, but agreed with the learned Chief Justice that the decree was ex parte against all and also joint and indivisible. He was not prepared to hold that a decree passed even against a Defendant on the merits could be set aside.

Aikman, J., the third Judge, could not agree that Section 108 in terms required the setting aside of the entire decree. He read the word ''decree'' as meaning an ex parte decree against the Defendant. He,'' however, agreed to the setting aside of the entire decree as it was necessary to give the minors the relief they claimed, treating the decree as more or less on a level with a decree which may be joint and indivisible. The Defendants were sued as members of a joint Hindu family for a debt incurred by the adult member who could show no cause for his absence. If the ex parte decree against him had stood, the minors would not have derived any benefit even if the suit against them personally had been dismissed.

His third case is reported in ''5 Cal LJ 202 (E)''. This is the first case in which though the decree was ex parte, a Defendant was discharged. This decision also was influenced by the view which prevailed in ''25 Cal 155 (B)'' as to the construction of Section 108, Code of Civil Procedure. The peculiar circumstances of the case lent weight to the logical conclusion of the interpretation, for, refusal to set aside the decree against the Defendant who had been discharged involved manifest injustice.

Apart from the different opinions expressed in the case, there was an ex parte decree in regard to all the Defendants. Order 9, Rule 13 as it stands now, would not cover such a case. This case does not support the contention that it is possible to set aside the dismissal of suit ordered on contest.

The three decisions considered above have been influenced in varying degrees by the language of Section 108, which has subsequently been altered. Rule 13 of Order 9 cannot now be interpreted as laying down that it contemplates the setting aside of the entire decree, as was done in ''25 Cal 155(B),. These authorities, therefore are of no great assistance in determining the question whether a decree or a part of a decree, by which a suit is dismissed against a Defendant on contest, can be set aside under Order 9, Rule 13, Code of Civil Procedure.

The last decision relied upon is Ram Baran Vs. Bodh Ram and Others, In this case, an ex parte decree was passed against three Defendants. The suit was dismissed against another Defendant who had appeared. One of the Defendants against whom the decree was ex parte, applied for setting it aside. The contention raised was that the decree could not be set aside against, a Defendant against whom the suit had been dismissed on contest. The learned Judge noticed the conflict of decisions on the point, but without considering these decisions, he relied on the following remarks of Aikman, J., in '' 24 All 383 (FB)(D):

In my opinion, the Court must be assumed to have the power to set aside the whole decree, if the decree ''from its nature'' is one and indivisible, or if, in order to give to the Defendants against whom an ex parte decree has to be pronounced, the relief to which they are entitled, it must be set aside as a whole.

The decree had been found to be joint and indivisible and on the facts it was held that the position would be anomalous if the decree against Defendant No. 2 was set aside and the decree against the other Defendants was allowed to stand. The circumstances of the case and the resultant anomaly, if the decree was set aside partially, do not appear from the judgment, but the order dismissing the suit on the merits was set aside on the strength of the remarks of Aikman, J. It may be pointed out with profound respect to the learned Judge that the observations relied oh by him did not support the view he has taken. The observations of Aikman J. were made in a case in which the suit had not been dismissed against, any Defendant. His remarks did not apply to the circumstances of this case. Besides, they would not. cover a case where the decree is not joint and indivisible.

The value of the decision as a precedent must also depend to a considerable extent on the facts of the case which are not before us. With great respect to the learned Judge, I find it difficult to read into the proviso of the Rule that its scope is large enough to cover decrees in favour of Defendants passed on the merits, if they happen to be incorporated in the same decree-sheet which embodies an ex parte decree against some Defendants. It appears to me that the learned Judge assumed that the proviso to Order 9, Rule 13, was a part of Section 108 of the old Code. He observed that if the proviso could apply to the facts of the casein ''24 All 383(FB)(D)'' it could, with justification, be applied to the case before him. The proviso did not exist in 1902 when the case reported in ''24 All 383(FB) CD),'' was decided, and could not be considered at that time. The learned Judge presumably had the principle of the proviso in mind.

In Mulla''s Commentary on the Code of Civil Procedure, 12th Edn. page 657, paragraph 2, the view expressed is that the words ''the decree in the proviso mean the decree passed in the suit, not only against the Defendants who did not appear but also against the Defendants who appeared.'' The words ''other Defendants'' in the proviso mean the Defendants other than the Applicant against whom the decree is passed, whether, as against them, it was passed ex parte, or after a hearing. This statement of the law would not cover cases in which the" suit is dismissed on the merits against a Defendant or Defendants, though in support of the proposition, reliance has been placed on both ''25 Cal 155(B)'', ''24 All 383'' & also on ''151 Ind Cas 963 '' which corresponds, to Ram Baran Vs. Bodh Ram and Others, As shown above, these cases cannot be regarded as authorities for the proposition that the proviso covers cases in which the suit is dismissed against a Defendant or some Defendants on the merits and decreed ex parte against others, in such cases, there are two decrees though they are incorporated in one decree-sheet. This happens where the interests of the Defendants are separate or separable, but the decision is incorporated in one decree. In such cases, there are distinct decrees against different'' Defendants. Where there are different decrees, the proviso will apply to that part of too decree which is ex parte and to which Order 9, Rule 13 applies.

It is conceivable that a decree by which the entire suit is decreed ex parte against some and on the merits against the others, may be a joint and indivisible decree. Where a decree is joint and indivisible, it may possibly be regarded as a decree coming within the ambit of Order 9, Rule 13, Code of Civil Procedure, out that is not the question before us, and I think the learned Author merely derived support from the authorities referred to, for his own proposition, which does not cover the case of dismissal of a suit on the merits. He does not appear to have considered the case in which the decree incorporates an order of dismissal of the suit on the merits against one or more of the Defendants.

In Kedar Nath Singh Vs. Kesri Mull and Others, there was a mortgage debt on the basis of which a mortgage decree was passed ex parte. The decree was indivisible. It was also ex parte. The suit had not been dismissed against any Defendant on the merits. In '' AIR 1931 Mad 6(G)'', also there was an ex parte decree against ail the Defendants, but the application to set aside was made only by some of them. It was held that the decree should be set aside against all the Defendants, as setting aside of the decree against the applying Defendant would result in consistent decrees. These cases are not at all helpful. In both, the decrees were ex parte. No part of the decree in each case was the result of a trial on contest; nor were the suits dismissed against any of the Defendants on the merits. The question now before us did not at all arise in these cases and, therefore, could not be decided.

The conclusion I reach from the above examination of precedents and the language of the Rule is that the Legislature did not intend to authorise setting aside of an order dismissing a suit on contest against a deft, or Defendants even though it is incorporated in a decree-sheet which embodies an ex parte decree against others.

In this view of the matter, the order setting aside the dismissal of the suit in favour of Defendant Petitioner is without jurisdiction. Even on facts, there is no justification for such an order. The case of the Petitioner was that the Plaintiff Bank discharged him from responsibility on receiving half of the amount then due. The suit is for the balance. His plea prevailed. The Plaintiff did not appeal. He is bound by the decree. Defendant Respondent had also pleaded that he was responsible for half of the sum sued for. He did not plead that liability for the entire amount was joint and several. The decree is not joint and indivisible. There is no possibility of any conflict of decrees. The learned Sub-Judge has not exercised any judicial discretion. He has not noticed the effect of the plea raised by the applying Defendant in his original written statement. He has not given his reasons for the exercise of the power he believed he had under the proviso. His order, therefore, is unsustainable and I entirely agree with the learned Chief Justice in the view he has taken of the case on both the points that arise in

Deka, J.

This is a small matter that raises an important issue. The question is whether the Court purporting to act under the proviso to Order 9, Rule 13, Code of Civil Procedure, can set aside a decree for dismissal in favour of one of the Defendants while setting aside the ex parte decree at the instance, of some other Defendant.

The facts of the case are--that the Gauhati. Bank Ltd. brought a money Suit Mo. 34 or 1946 in the court of the Subordinate Judge at Tezpur against the two Defendants, Khagesh Banerjee and Chandra Kanta Barua for realisation of Rs. 4,275/13/3 on the basis of a cash credit account opened by both the Defendants jointly with the aforesaid Bank. Both the Defendants filed separate written statements where Khagesh Banerjee-pleaded payment or his share of the dues and discharge from liabilities -- whereas Chandra Kanta Barua, opposite party No. 1 admitted the liability to the extent of half the amount sued for bur pleaded inter alia that the interest charged was excessive. The suit came up for hearing before the Subordinate Judge, L.A.D. on 29-8-51 on which date the suit was decreed ex parte for Rs. 4,000/- against Chandra Kanta who was absent and dismissed. On contest against Khagesh Chandra Chandra Kanta applied for setting aside the ex parte decree under Order 9, Rule 13, CPC and the said application was allowed by the learned Sub-ordinate Judge by his order dated 5-6-52 whereby he set aside the ex parte decree against Chandra. Kanta and restored the whole suit against both the Defendants. Khagesh Chandra''s objection is; that this order is without jurisdiction -- and the decree in his favour, which was one of dismissal of the suit on contest, -- could not be set aside in giving relief under Order 9, Rule 13, CPC to a co-Defendant.

The relevant passage in the order challenged before us'' is as follows:

The next point is whether the decree against both the Defendants should be set aside or it should be set aside against the Petitioner alone as the suit was dismissed on contest against-Defendant objector No. 2.

Considering the nature of the suit as well as. the relief to which the Applicant is entitled in the suit could not effectively be given otherwise-than by setting aside the decree as against the other Defendant i.e. opposite party No. 1, the whole decree should be set aside.

The contention of the learned Advocate for-the Petitioner is two-fold -- firstly, that setting aside a decree for dismissal does not come within the scope of Order 9, Rule 13, CPC and the court acted without jurisdiction in so doing and secondly, even if it be conceded that the Court had jurisdiction in the matter to set aside the decree in favour of the Petitioner Defendant No. 2, because of the proviso to Order 9, Rule 13, Code of Civil Procedure, the court did not exercise the discretion judicially.

Mr. Dam''s contention is that what can be set aside in a proceeding under Order 9, Rule 13, is a decree in favour of the Plaintiff, -- but in this case, there was no ''decree'' so far his client was concerned, rather there was the absence of it, as the suit failed against him. This argument is purely misconceived, because no matter whether the suit succeeds or fails, -- there is a decree as defined in Section 2(2), CPC which only means determination of'' the rights of the parties with regard to all or any of the matters in controversy in the suit. The second argument addressed by Mr. Dam is that what is contemplated in Order 9, Rule 13, CPC is that the ex parte decree may be set aside ordinarily against the Defendant who applies for setting aside the same and in the cases coining under the proviso to that rule, it may be set aside against other Defendants as well -who had not applied for setting aside the ex parte decree that existed as against them. He seemed to rely on the learned commentary of late D.P. Mulla in his CPC in support of this argument. Mulla''s commentary, however, is quite the reverse and it says that where against some of the Defendants the decree is passed ex parte, but against others who have appeared and defended the suit it is passed on the merits, and the application to set aside the decree is made by one or more of the Defendants against whom the decree was passed ex parte, if the decree is of such a nature that it cannot be set aside as against the Applicant only, but must be set aside as against the Defendants against whom the decree was passed on the merits, the court has the power to set aside the decree as against such Defendants also (See Mull''a Code of Civil Procedure, 12th Editipn, page 657).

Mr. Dam''s strongest support seems to be from -- ''18 Ind Cas 327(Lah)(F)'' a decision of a Single Bench of the Punjab Chief Court where the learned Judge opined without giving reason whatsoever, that the proviso to Rule 13, Order 9, Code of Civil Procedure, did not apply to the case of a Defendant against whom the suit had been dismissed on the merits, without appeal by the Plaintiff.

The next case relied on by him is -- ''18 Bom 142 (A)'' where also no principle is discussed out in a reference by a Subordinate Court in answer to a question framed as follows:

Where an application by a co-Defendant praying for setting aside an ex parte decree in a Small Cause suit, if granted, re-opens the case against the Defendant or Defendants who were present and who conducted the defence in the original trials in cases where there is a common cause of action against all the Defendants.

The opinion of the High Court is given in the following words:

Having regard to the language of Sections 106 and 108, CPC (Act 14 of 1882) the question must be answered in the negative.

Mr. Dam placed some reliance on -- Radhashyam Choudhury and Others Vs. Gourinath Roy and Others, which, however, did not consider the implication of the proviso to Order 9, Rule 13, CPC but all that the court decided was that since the three Defendants against whom the suit was dismissed were not made parties to the motion by virtue of which the ex parte decree was set aside that order had no effect against those Defendants and they could take this objection while fighting the decree passed in the suit and in the opinion of the learned Judge (Sen J.), the original decree remained intact so far those Defendants were concerned.

The other case relied on by Mr. Dam was -- ''AIR 1950 Mad 765(L)''. That case also is distinguishable. There the Plaintiff had withdrawn the suit against Defendant 3 at the first instance and therefore her prayer to have the suit restored as -against this Defendant after the ex parte decree was set aside against another Defendant, was rightly rejected. All that was held therein was that there could be no withdrawing of the withdrawal under the provisions of the Code of Civil Procedure.

Whereas in -- ''25 Cal 155(B)'', we get a fuller consideration of the point involved in this case though it was a proceeding under the old Act, namely Act 14 of 1882 with regard to Section 108 of that Act. The view expressed by the learned Judges was that it was competent for the trial court to set aside the entire decree and restore the suit in an application u/s 108. Maclean, C. J. interpreting the section as it then stood observed that ''the court shall appoint a day for proceeding with the suit'' meant the whole suit not merely the suit as against or so far as it affected the particular Defendant or Defendants making the application, but the ''whole suit''. The learned Judge further observed further down in the said judgment:

If the original decree was allowed to stand as against the original Defendants who had appeared and defended the suit, and the suit were only allowed to proceed on the second hearing...as against the Defendants against whom in the first instance, the decree had been made "ex parte, I can conceive cases in which complications and possibly injustice might result.

Banerjee, J, agreeing with the learned Chief Justice observed as follows:

It was argued that the decree in this case should be treated as a decree partly ex parte and partly not ex parte decree, and that the section authorises the Court to set it aside only so far as it was an ex parte decree. The section, however, makes no such distinction and as pointed out in the judgment of the learned Chief Justice, there may be very good reason why the section did not make any such distinction. It may often happen that the setting aside of the decree as regards some of the Defendants renders it necessary in the interests of justice that the whole decree should, be re-opened; and the present case is an instance in point....

The same view was followed in another Calcutta case reported in 5 Cal LJ 202 (E)''. This was a money suit which was first decreed against three of the Defendants ex parte and dismissed against Defendant 4, On motion, the entire suit was restored and tried de novo as a result of which a decree for a large amount was passed against Defendant 4. Defendant 4 contended that the suit being once dismissed against him, no subsequent decree could be'' passed against him on restoration of the suit. This objection was however overruled relying on -- ''25 Cal 155(B)''. It was held therein that where the question involved in a case is whether the liability of the Defendant is joint or several, and in such a case, the ex parte decree is set aside on the application of some of the Defendants and the question of joint or several liability had to be considered at all, it must, be reconsidered as a whole and in presence of all the Defendants and the suit should be restored even though it might be that the suit was dismissed against some of the Defendants while a decree was passed ex parte against the rest.

''24 All 383 (FB)(D)'' is another important decision of a Full Bench of the Allahabad High Court where Section 108, CPC (Old) came up for consideration and there Stanley, C. J. held the same opinion as Maclean C. J. in -- ''25 Cal 155 (B)'' and observed that primarily the whole decree should be set aside and the suit to be proceeded with was the whole suit and it was in that judgment that the proviso that we are now getting in Rule 13, Order 9, was first suggested to discriminate the cases of those Defendants the decree against whom may not be interfered. Aikman J. constituting the Special Bench observed that "Section 108, CPC primarily applies so far only as the particular Defendant who seeks relief�s for. setting aside the decree-passed ex parte against him. But: under certain circumstances, it may be necessary in the interest of justice that the whole decree should be reopened and when the decree is one and indivisible it must be set aside as a whole though there may be only one Defendant applying for setting aside the decree.

This decision was followed in -- Ram Baran Vs. Bodh Ram and Others, in which one of the four Defendants had made appearance in the suit and the suit was dismissed as against him but an ex parte decree was given against the three other Defendants. One of the absenting Defendants applied under Order 9, Rule 13, to have the ex parte decree set aside and the Court after fully discussing the merits of the case considered that the decree sought by the Plaintiff against the four Defendants was one and indivisible and set aside the whole suit. Kendall J. held that under the circumstances, the trial Court could not be said to be acting irregularly in so doing. The learned Judge in coming to his decision considered the case reported in -- 18 Ind Cas 327 (Lah)(F)'' and -- ''18 Bom 142(A)'' too.

Kedar Nath Singh Vs. Kesri Mull and Others, lays down a similar principle. In -- '' AIR 1931 Mad 6 (G)'', a Division Bench of the Madras High Court observed that there are cases in which a Court setting aside a decree or order in part is constrained by the logic of circumstances to set it aside in to to; and the necessity for this in certain cases is recognised by CPC in Order 9, Rule 13 and they applied this principle in that particular case though that was not applicable in terms. Sir D.P. Mulla in his commentary relied on the cases I have referred to above and observed at page 657 that

the words "other Defendants" in the proviso to Order 9, Rule 13 meant Defendants other than the Applicant against whom the decree is passed, whether as against them it was passed ex parte or after hearing.

The only point we have to consider is whether the dismissal of the suit as against any Defendant in the hearing in which an ex parte decree was passed against the rest, takes the case outside the scope of the proviso to Rule 13. In my opinion, there is nothing in the words of the statute to imply such a distinction. When the nature of the case demands that the suit should be restored in its original form to give relief to the aggrieved party whosoever he may be, it would make no difference whether the suit was dismissed or decreed against the Defendants who appeared at the first hearing and even contested.

My lord the Chief Justice has tried to draw an inference from the fact that since the words "as against" are used in the proviso, that only implies that the decree must be against the other Defendants and not in their favour just as an order for dismissal. I feel inclined to give wider connotation to the word ''decree'' as defined in the CPC itself, and do not feel prepared to rule out the cases where the suit in the earlier hearing ended in an order favourable to some or one of the Defendants. What is to be considered is not whether the Plaintiff is estopped from claiming further relief against the Defendant without going to the appellate court, since there has been an adjudication between him and the Defendant who appeared at the earlier hearing, but whether the Defendant who was absent at the time (for sufficient reasons) should not get a chance to reopen the entire suit in his interest, if the justice of the case so demands. To my mind, the intention of the legislature is to give him such relief and therefore the proviso to Order 9, Rule 13, CPC admits of no narrower interpretation, & when the decree is of such a nature that proper relief cannot be given to the applying Defendant without setting aside the decree against other Defendants (no matter in what shape it existed), the decree'' may be'' set aside as against the other Defendants also.

In this particular case, the nature of the decree is not such that it could not be set aside against the applying Defendant alone, as contended, and I accordingly agree that the order moved against may be set aside and the rule made absolute.