SURAJ KUNWAR Vs. CHAMPALAL

JUDGEMENT

(1.) These are connected revision applications filed by the plaintiff against two orders purporting to have been passed under Order 9, Rule 13 C. P. C. by the Additional Civil Judge, Jodhpur setting aside an ex parte decree not only against those defendants who had applied for setting aside the ex parte decree against them but also against the other defendants who had not so applied.

(2.) The plaintiff instituted the present suit on 5-4-1956 against six defendants-- Labhchand, Ratanchand, Vardhmanchand, Champalal, Gulraj and Pukhraj, on the allegation that they were partners of the firm 'Vijailal Champalal', that Labhchand and Champalal were the managers of the firm, that the plaintiff had money lending dealings with this firm, that the firm borrowed Rs. 3,000/- from the plaintiff on Poh Sudi 6 Sambat 2009 agreeing to pay interest at annas /10/- per cent per month, that on Kartik Sudi 1, Labhchand executed a 'writing' on behalf of the firm about this loan and that as repayment was not made in spite of demands, the present suit was being instituted. Summonses were issued to all the six defendants. They were returned with the report that they had been duly served. On the date of hearing, none of the defendants appeared in the court. The court considered that the defendants had been duly served and on 6-12-1956, an ex parte decree was passed against all the defendants.

(3.) One application for setting aside the ex-parte decree was made by Pukhraj and Champalal defendants on 21-2-1957. Another similar application was made by Ratanchand defendant on 8-7-1957. Both these applications were allowed by the learned Additional Civil Judge, Jodhpur on 11-12-1959. In allowing these applications, the learned Additional Civil Judge not only set aside the ex parte decrees passed against Pukhraj, Champalal and Ratanchand who had filed applications under Order 9, Rule 13 C. P. C. but he also set aside the decrees passed against the remaining three defendants--Labhchand, Vardhmanchand and Gulraj. In doing so, he relied on Bhuramal v. Harkishandass, ILR 24 All 383 (FB). On behalf of the applicant, it is urged that on the allegations made in the plaint, each of the defendants was personally liable to the extent of the whole amount due in respect of the loan on the date of the suit and the proviso to Rule 13 of Order 9 C. P. C. is not applicable as the decree is not of such a nature that it cannot be set aside as against Pukhraj, Champalal and Ratanchand defendants only who had applied for setting aside the ex parte decree. In support of the contention, reliance is placed on a Division Bench decision of this Court in Raj Kumar v. Kishenlal, ILR (1953) 3 Raj 422. In that case, a suit for specific performance of a contract for sale had been decreed ex parte against nine defendants including one Raj Kumar. Raj Kumar applied for setting aside the ex parte decree and on his application, only the ex parte decree passed against him was set aside and not the ex parte decree against the remaining eight defendants. It was urged on behalf of the defendants that the decree was of such a nature that it could not be set aside against Raj Kumar alone. This argument was repelled on the ground that it could not be said that the ex parte decree could not be set aside against Raj Kumar only within the meaning of the provisions of Order 9, Rule 13 C. P. C. It was observed; There is nothing to prevent the sale deed being executed by the remaining defendants and the vendee will take consequences of the sale-deed, being executed by some of those who were party to the contract of sale".