The main legal point established in the judgment is the application of the proviso to Rule 13, Order 9, Civil P. C. in setting aside an indivisible decree and the implications of the compromise decree under Section 56 of the Contract Act.

Curgenvan, J.

1. The plaintiff, who is now the petitioner, sued three persons in the following circumstances. In a previous suit a decree had been obtained against the undivided brother of the 2nd and 3rd defendants and in execution of that decree a house supposed to belong to the judgment-debtor was purchased by the 1st defendant. The latter sold this house to the plaintiff for Rs. 1,500 but the plaintiff was obstructed from obtaining possession by the 2nd and 3rd defendants, claiming each 1/3 share. He therefore sued the three defendants to obtain delivery of the house together with mesne profits and in the alternative, if delivery were not decreed, to recover the purchase money from the 1st defendant. When the suit came on for trial, the 2nd and 3rd defendants were ex parte and the plaintiff compromised with the 1st defendant, with the result that a decree was passed against all the defendants for possession and for a sum of Rs. 405 as mesne profits, this part of the decree being executable first against the 2nd and 3rd defendants and only on a failure to recover from them against the 1st defendant. The 1st defendant was also to pay off the amount of a mortgage decree on the property, and this, it is said, he subsequently did. It will be observed that the claim for return of the purchase money was given up. After this decree was passed, the 2nd defendant, who had been ex parte applied to the District. Munsif to have it set aside as regards himself. The District Munsif dismissed that application, but in appeal it was allowed by the Subordinate Judge. It is against this order that the present revision petition is preferred. If it is to be set aside at all, the petitioner asks that it should be set aside not only as against one, but as against all the defendants. There is an affidavit sworn to by the vakil who represented the petitioner that this request was made to the Subordinate Judge and I think I must accept this as true, although there is a counter-affidavit by the defendant to the contrary. The Subordinate Judge having failed to consider and decide whether or not the request is to be granted, I think that, if due cause is shown, shere will be ground for interference in revision.

2. Under the proviso to Rule 13, Order 9, Civil P. C., where a decree is of such a nature that it cannot be set aside as against the applying defendant only, it may be set aside as against all or any of the defendants also. It appears to me that the decree in this case is of this indivisible character, because it is for the possession of a house, which itself is indivisible; so that if the share of one of the defendants is excluded, delivery will, in effect, be impossible. I think, therefore, that the case will be a fit one for acting under the proviso if the circumstances that as between the plaintiff and the 1st defendant the decree was by compromise is not a bar to such a course. There is indeed nothing in the Code which requires that a compromise decree should receive special treatment in this respect; but it is true that on general principles the parties cannot ordinarily be allowed to resile from the contract which forms the basis of such a decree. An exception to this principle would, I think, be permissible in cases where an action would lie to avoid the contract upon any ground (recognized by the Contract Act. Under ISection 56 of that Act a contract which becomes impossible, becomes void. It was a part of the contract, between the plaintiff and the 1st defendant, that the former should obtain possession of the house, and it was a necessary condition of so obtaining possession that the decree obtained against the other two defendants should remain in force. If the decree against either were set aside, the circumstances in which the contract was made would have ceased to exist. I have been referred to an English case, Krell v. Henry [1903] 2 K. B. 740 which was a decision arising out of some analogous circumstances. The plaintiff h