C.B.Agarwala, J. - (1.) This is an application in revision against an order dismissing an appeal, which order confirmed the order of the City Munsif of Saharanpur rejecting an application for setting aside a decree under Order 9, Rule 11, Civil Procedure Code.
(2.) The facts briefly stated are these. Rahtumal and Lal Chand, opposite parties, filed a suit which has given rise to these proceedings against two persons, Riaz Ahmad and Mohammad Muqim. These defendants were impleaded in their individual rights and also as representatives of the Muslim community of Saharanpur. In paragraph 5 of the plaint it was expressly stated that the number of Muslims in Saharanpur was exceedingly large and as they had started offering prayers at the place in dispute, the suit had been filed under Order 1 Rule 8 Civil Procedure Code against the defendants as representatives of the Muslim community of Saharanpur. An application was also presented to the Munsif for permission to sue the defendants in a representative capacity. This application was allowed and notice was published in a local newspaper called 'Peoples Journal'. defendant No. 1 filed a written statement. defendant No. 2 stated in Court that he had no concern with the property in dispute. No one other than the defendants out of the Muslim public of Saharanpur applied for being impleaded in the suit. The suit was ultimately decreed on the 18th September, 1952 on the merits. On 17th November, 1952 the applicant Noor Mohammad who was not a party named in the suit filed an application before the Munsif under Order 9, Rule 13, Civil Procedure Code praying that the decree passed on the 18th September, 1952, may be set aside as it was an ex parte decree so far as he was concerned, he not being present on the final date of hearing. This application was dismissed by the learned Munsif. An appeal by the applicant in the lower appellate court was also unsuccessful. Both the courts below held that no such application lay as it could not be said in the circumstances that the suit had been decreed ex parte.
(3.) Learned Counsel for the applicant has urged that the applicant should have been deemed to be a party to the suit as proceedings under Order 1, Rule 8, Civil Procedure Code had been taken and that as such as he was absent, the decree must be deemed to be ex parte against him and that an application for setting aside the ex parte decree lay under Order 9, Rule 13, of Civil Procedure Code.;