Sultan Husain Khan vs Satnarain Lal

This revision petition is directed against the order of the First Judge of the City Civil Court, dated 28th January 1952, dismissing the petition of the revision Petitioner for setting aside the ex parte decree passed against him.

The Respondent is absent. After hearing the arguments of the learned Advocate for the Petitioner, we are of the opinion that this revision petition should be allowed. The facts briefly are that the Respondent obtained a money decree against the Petitioner and two others on the basis of a promissory note executed by all the three Defendants. As the judgment and decree was passed ex parte, the Petitioner sought to set it aside under the provisions of O. 9, R. 13, CPC After due enquiry, the first Court found that the service on the Petitioner was not sufficient and proper under the provisions of the law but that Court dismissed the petition on the ground that the other two Defendants were not made Respondents in the petition. This judgment was upheld in appeal by the lower Appellate Court.

The question of law to be decided is whether one of the Defendants can. apply for an order to set aside the ex parte decree. Under the provisions of Order 9, Rule 13, Code of Civil Procedure, there is no compulsion on the Petitioner to make his co-Defendants parties to the petition. All that is laid down in the above rule is that if the court is satisfied that the summons was not duly served, the court shall make an order setting aside the decree: as against him upon such terms and conditions'' as to costs, payment into court or otherwise, as it thinks fit. There is a proviso to this rule which lays down that where the decree is of such a nature that it cannot be set aside as against such Defendants only, it may be set aside as against all or any of the other Defendants also. Thus, a discretion has been given to the Court to decide other Defendants. It is nowhere laid down in this proviso that for the purposes of passing such an order the other Defendants should also be made parties to the proceedings. The lower Court has based its judgment on the reasoning that as the decree is against the Defendants, they all should be made parties. There is no warrant for such a proposition. The decree may be joint or. several but that is no criterion for the presentation of a petition under Order 9, Rule 13, Civil P.O. We are of the opinion, therefore, that the Defendant who has submitted the petition can submit the same without making the other Defendants parties. We remand the case to the first Court and direct that the petition of the revision Petitioner be decided on the merits as also the question whether the decree will be set aside against the other Defendants as well, who are not parties to the petition. The revision Petitioner is entitled to the costs of this petition. Advocate''s fee Rs. 30/.