A defendant cannot apply to set aside an ex parte decree under Order 9, Rule 13 of the CPC if the defendant had knowledge of the suit and had been served with notice of the application for restoration of the suit under Order 9, Rule 9 of the CPC.

Original Suit No. 349 of 1982 was filed for declaration that lease deed dated 21-9-1991 executed by Sri Jamuna Prasad in favour of the defendant Nos. 1 and 2, is null and void. The said suit was dismissed in default by an order dated 21-5-1984. An application under Order 9, Rule 9 of the Code of Civil Procedure (hereinafter referred to as the Code), was filed by the plaintiff, which was registered as Misc. Case No. 16 of 1984. The said application was allowed by an order dated 13-11- 1984. Thereafter the suit was decreed ex pane on 7-1- 1986. An appeal against ex pane decree was filed by the trustees who were- defendants. The said appeal being First Appeal No. 98 of 1986 was ultimately dismissed by this Court by an order dated 5-7-1994. The petitioner in the present writ petition has filed an ap plication under Order 9, Rule 13 of the Code of 2-1- 1996. The said application was registered as Misc. Case NO. 2 of 1996, the said Misc. application was allowed by the learned Trial Court by an order dated 28th June, 1996. The said order was chal lenged in Civil Revision No. 99 of 1996. This Civil Revision was allowed by setting aside the order dt. 28th June, 1996 passed by the learned Trial Court which allowed the application under Order 9, Rule 13 of the Code. This order dated 27th May, 1998 passed in Civil Revision No. 99 of 1996, dismissing the petitioners application under Order 9, Rule 13 has since been challenged in the present writ petition.

2. Sri Ravi Kant, learned Counsel for the petitioner contends that though sum mons of the suit were served on the petitioner but after the suit was dismissed in default and it was restored under Order 9, Rule 9 of the Code, fresh summons ought to have been served upon the petitioner. Since no fresh summons were served upon the petitioner after restoration of the suit, there was no service of summon, therefore the case falls within the scope of Order 9, Rule 13 of the Code, for the purposes of setting aside such an ex pane decree, which was passed without any notice to the petitioner.

3. Sri Manish Nigam, learned Coun sel holding brief of Sri Janardan Sahai, on the other hand submits that after the First appeal against ex. pane decree was dis missed in 1994 it is not more open to the petitioner to file an application under Order 9, Rule 13 of the Code in view of explanation contained in Rule 13 of Order 9. Then again the petitioner happened to be treasurar, while the appeal has been preferred by the trustees who were lessees and the Treasurar does not have any inter est more than that what the trustees do have. Therefore, he cannot espouse the. cause after the trustee has become unsuc cessful in appeal.

4. Sri Ravi Kant, then submits that. the appeal was dismissed on account of non-payment of Court fees. Therefore, ex planation contained under Order 9, Rule 13 cannot be attracted since the petitioner was not the appellant.

5. I have heard learned Counsel for both the parties at length.

6. The question that falls for deter mination in the present case is the scope of Order 9, Rule 13 of the Code. The said scope has to be determined on the basis of facts and circumstances of the present case. So far as the question that fresh sum mons are to be issued to the defendants , after the suit is restored under Order 9, Rule 9 of the Code, is concerned, it does not appear that the contention of Mr. Ravi Kant stands on sound footing. In as much as summons of the suit were admittedly served on the petitioner before the suit was dismissed in default, i. e. before application under Order 9, Rule 9 of the Code was filed. It is also not disputed that notice of the application under Order 9, Rule 9 was also served on the petitioner. Thus the petitioner had notice of suit by virtue of summons served upon him before the suit was dismissed in default and then he had notice of the application for restoration under Order 9, Rule 9, after the said ap plication under Order 9, Rule 9 was filed. Thus