JUDGMENT

C.B. Agarwala, J. - This is an application in revision against an order dismissing an appeal, which order confirmed the order of the City Munsif of Saharanpur rejecting an application for setting aside a decree under Order 9, Rule 11, Code of Civil Procedure.

2. The facts briefly stated are these. Rahtumal and Lal Chand, opposite parties, filed a suit which has given rise to these proceedings against two persons, Riaz Ahmad and Mohammad Muqim. These Defendants were impleaded in their individual rights and also as representatives of the Muslim community of Saharanpur. In para. 5 of the plaint it was expressly stated that the number of Muslims in Saharanpur was exceedingly large and as they had started offering prayers at the place in dispute, the suit had been filed under Order 1 Rule 8 CPC against the Defendants as representatives of the Muslim community of Saharanpur. An application was also presented to the Munsif for permission to sue the Defendants in a representative capacity. This application was allowed and notice was published in a local newspaper called 'Peoples Journal'. Defendant No. 1 filed a written statement. Defendant No. 2 stated in Court that he had no concern with the property in dispute. No one other than the Defendants out of the Muslim public of Saharanpur applied for being impleaded in the suit. The suit was ultimately decreed on 18-9-1952 on the merits. On 17-11-1952 the applicant Noor Mohammad who was not a party named in the suit (sic)led an application before the Munsif under Order 9, Rule 13, CPC praying that the decree passed on 18-9-1952, may be set aside as it was an ex parte decree so far as he was concerned, he not being present on the final date of hearing. This application was dismissed by the learned Munsif. An appeal by the applicant in the lower appellate court was also unsuccessful. Both the courts below held that no such application lay as it could not be said in the circumstances that the suit had been decreed ex parte.

3. Learned Counsel for the applicant has urged that the applicant should have been deemed to be a party to the suit as proceedings under Order 1, Rule 8, CPC had been taken and that as such as he was absent, the decree must be deemed to be ex parte against him and that an application for setting aside the ex parte decree lay under Order 9, Rule 13, Code of Civil Procedure.

4. It appears to me that the contention of learned Counsel for the applicant cannot be supported in law. Order 1, Rule 8 lays down:

(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the Plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.

(2) Any person on whose behalf or for whose benefit a suit is instituted or defended under Sub-rule (1) may apply to the Court to be made a party to such suit.

5. In the present case the Plaintiff stated that there were numerous persons having the same interest in the suit and that permission may be granted to sue the Defendants on behalf of and for the benefit of all the persons so interested. Notice was issued as required by Rule 8 by means of public advertisement as directed by the Court. The effect of these proceedings was that the entire Muslim community of Saharanpur would be deemed to be represented in the suit through Defendants 1 and 2. Although the Muslim public of Saharanpur was the optically speaking party to the suit in the sense that they would be bound by the result of the suit, they could not be said to be parties named on the record as such. The parties arrayed in the suit were Defendants 1 and 2 and t