An ex parte decree passed against some of the defendants can be set aside in toto at the instance of the rest of the applying defendants if the decree is indivisible, inseparable, and joint.

HARISH TANDON, J.

1. 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 and 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 and 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 nat