- (1.) In this case, the question, which arises for consideration, is regarding the scope of the proviso to Order IX, Rule 13 of the Code of Civil Procedure. It appears that, on June 2, 1961, defendant Nos. 4 and 5 sold the house in dispute in favour of defendants Nos. 1 to 3. Subsequently, on September 5, 1963, the same house was sold by defendants Nos. 6 and 7 to the plaintiffs. On May 27, 1963, the plaintiff's filed suit No. 193 of 1963 in the court of Munsif, Kairana, against the seven defendants. Against defendants Nos. 1 to 5 they claimed the relief of possession over the house and against defendants Nos. 6 and 7 they claimed the relief, in case they were held not entitled to the relief against defendants Nos. 1 to 5, of refund of the sale consideration with interest. Both sets of defendants filed their written statements. On the date of hearing, defendants Nos. 6 and 7 were absent, but the other defendants contested the suit. By judgment and decree dated August 5, 1965, the additional Munsif, Kairana, dismissed the suit on merits against defendants 1 to 5 but decreed it ex parte against defendants Nos. 6 and 7 for recovery of Rs. 1,085. He held that defendant 4 and 5, and not defendants 6 and 7 were the owners of the house and, therefore, the sale in favour of defendants 1 to 3 was a valid sale. Subsequently, defendants Nos. 6 and 7 made an application under Order IX, Rule 13 of the Code for setting aside the ex parte decree. By order dated July 30, 1966, the Munsif not only set aside the ex parte decree against defendants 6 and 7 but also set aside the decree passed in favour of defendants Nos. 1 to 5. Against this order, the present revision has been filed.
(2.) Order IX, Rule 13 reads thus:-- 13. 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 as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.
(3.) There are three possible classes of cases in which an application under Order IX, Rule 13 may be made: (i) Where the suit has been decreed ex parte against all the defendants; (ii) Where the suit has been decreed on merits against some defendants and ex parte against the others; and (iii) where the suit has been dismissed on merits against some defendants and has been decreed ex parte against the remaining.;