- (1.) HARISH TANDON, J.: This revisional application is directed against order No.90 dated June 5, 2009 passed by learned Civil Judge (Junior Division) Tehatta, Nadia in Miscellaneous Case No. 31 of 2006 by which an application under Order 9 Rule 13 of the Code of Civil Procedure was allowed.
(2.) BY assailing the said order, plaintiff/petitioner raises a point that if an application under Order 9 Rule 13 of the Code praying for setting aside the ex parte decree at the instance of some of the defendants has been dismissed, the subsequent application under the same provision by the other defendants is not maintainable. Mr. Bidyut Banerjee, learned Senior Advocate appearing for the petitioner submits that upon rejection of an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree filed by the defendant nos. 1-4, the decree passed against them became final which cannot be set aside at the instance of the other defendant. According to him if the ex parte decree is set aside on an application filed by the other defendant, the same would enure to the benefit of the defendant nos. 1-4 who did not succeed in getting the said ex parte decree set aside. By raising the aforesaid point Mr. Banerjee tried to impress upon the court by giving an example that if two regular appeals under section 96 of the Code are filed by two different set of defendants challenging the selfsame judgment and decree, the dismissal of one would operate as res judicata upon the other. Similarly if on an earlier occasion the court refuses to set aside the ex parte decree, then subsequent application at the instance of the other defendant could not be maintainable/entertainable. By refuting the aforesaid submission, Mr. Dutta, learned Advocate appearing for the opposite party however, contends that mere rejection of an application for setting aside the ex parte decree by some of the defendants, cannot preclude the present opposite party from maintaining the similar application. He submits that if some of the unsuccessful defendants would be benefited from the setting aside of the ex parte decree at the instance of the other defendants the same is permissible and placed reliance upon a judgment of the Delhi High Court in case of Bank of India vs. M/s Mehta Brothers & Ors. reported in AIR 1991 Delhi 194. He strenuously submits that the first proviso to Order 9 Rule 13 extends the benefit of an order by which the ex parte decree is set aside to the other defendants who did not pray for the same. Therefore, even if the application for setting aside the ex parte decree filed by the said defendants are rejected there is no bar in extending the benefit of an order after setting aside the ex parte decree at the instance of the other defendants to them. To buttress the above submission he placed reliance upon the judgment of the Supreme Court in case of Mahesh Yadav Vs. Rajeswar Singh (2009) 2 SCC 205, Bank of India Vs. Mehta Brothers (2008) 13 SCC 466 and Rabindra Singh Vs. Financial Commissioner, Punjab & Ors. (2008) 7 SCC 663. Thus he concludes in saying that the order impugned should not be interfered in revision by the high court. To answer the point as indicated above, it would be profitable to quote provision of Order 9 Rule 13 of the Code of Civil Procedure which reads thus : SETTING ASIDE DECREE EX PARTE "R. 13. Setting aside decree ex parte against defendant. ? 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. Provided further, that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. Explanation.- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree." The title before the aforesaid provision makes it clear that the rules thereunder relates to setting aside the decree ex parte. The preamble of Order 9 Rule 13 manifests the setting aside the decree ex parte against the defendant. The main portion of the said rule contemplates two situations; firstly on satisfaction of the court that the summons was not duly served and secondly the defendant was prevented by a sufficient cause from appearing when the suit was called on for hearing; the court can set aside the decree. Two provisos and an explanation are appended to the main provision. First proviso which is relevant in the present context envisages that where the decree is of such nature that it cannot be set aside against an applying defendant only it may be set aside as against all or any of the defendants also. However the second proviso which is not very much relevant for the present purpose restricts the power of the court to set aside the ex parte decree on the ground of irregularity on the service of summons on satisfaction that the applying defendant had a notice on the date of hearing and had sufficient time to appear. The explanation makes it clear that in the event an appeal against the ex parte decree is disposed of on any ground than on the ground of withdrawal of appeal, the said application under the provision shall not lie.
(3.) PRIOR to incorporation of Order 9 Rule 13 with proviso thereto, section 108 of the Code of Civil Procedure 1882 contained a provision for setting aside the ex parte decree against the defendant upon satisfaction of the court that the summons were not duly served. However different words used in the said section namely "decree', "set aside the decree" and "proceeding with the suit" would suggest that the ex parte decree passed only against the applying defendant should be set aside but by insertion of the word "proceeding with the suit" requires the ex parte decree to set aside in toto as against all the defendants in the suit. However because of some divergence of opinion amongst the different high courts the said section was deleted upon introduction of the provision of Order 9 Rule 13 in the Code of Civil Procedure 1908. However, further complication arises as to whether a decree which is passed on contest against some of the defendants but ex parte against the rest could be set aside in toto at the instance of the rest of the applying defendants, the apex court incase of Bank of India Vs. Meheta Bros. reported in (2008) 13 SCC 466 answered the same point and held: "28. Keeping this interpretation of the first proviso to Order 9 Rule 13 of the Code in mind, let us now take up the other question to be answered in this case, which is whether a decree can be set aside against a defendant against whom the suit has been dismissed on contest. At the first blush, we thought it fit to think that a defendant who contested a suit and got the suit dismissed on contest it would be unjust to call back the said defendant who had already contested the matter and got the suit dismissed. This is because, it would amount to jeopardising his interest but it would also result in unending litigation for him. Therefore, before expressing any opinion on the issue posed before us, we have to solve this aspect also. For this reason, we wish to ascertain that there cannot be a rigid answer to this problem. As regards the question as to whether the term "decree" in the first proviso connotes ex parte decree or the decree in general, we have already come to a firm opinion, as discussed hereinabove, that it actually meant a decree in general. It may be kept on record that, in our view, the intention of the legislature is to use the word "decree" in the first proviso to mean decree in general in view of the changes in the expression made in the Code of Civil Procedure, 1882 and the Code of Civil Procedure, 1908. 29. Therefore, keeping this in mind, let us now consider whether a contested decree by some of the defendants can be set aside while considering the application for setting aside the ex parte decree against one of the defendants. This would, in our view, certainly depend on the nature of reliefs claimed by the plaintiff in his plaint and the nature of the decree in question. If the decree is indivisible, the court would be at liberty to set aside the decree not only against the defendant who applied for setting aside the ex parte decree passed against him, but also as against all or any of the other defendants." ;