Only the defendant against whom a decree was passed or their legal representative can apply for setting aside an ex-parte decree, and no third party can maintain an application under Rule 13 of Order IX of the Code of Civil Procedure, 1908.

1. This application for revision has been filed under Section 115 of Code of Civil Procedure, 1908, and is directed against the order dated 1-11-2003 passed by respondent No. 1 in Misc. Case No. 12/2003, whereby the application under Order IX Rule 13 of Code, moved by respondent no. 2 is allowed.

2. Brief facts of the case are that a petition under Section 73 read with Section 74 of Indian Trust Act, 1882, was moved by the revisionist before the Civil Court at Nainital which was registered as Civil Suit No.2 of 2001. As per the plaint allegations Late Thakur Shri Dan Singh Bist created a Trust in his life time and got it registered on 30th March 1963. During his life time he was the sole trustee and he died on 10-09-1964 in Calcutta. On his death, he left behind him three widows namely Smt. Leelawati Bist (still alive), Smt. Jagat Rajkumari (now dead) and Smt. Ganga Devi (now dead). The pedigree is shown below:

It appears that after the notices were issued to the concerned parties, the application moved under the Indian Trust Act, 1882, was allowed ex-parte whereby In place of the deceased wives of the original trustee, Sri I.S. Rathore and Ashok Singh Bist were appointed trustees vide order dated 23-12-2002 passed by the learned Trial Court. From copy of the order dated 27-3-2003 passed in writ petition no. 57 of 2003, it appears that later Smt. Lata Chauhan filed a writ petition which was disposed of with the observations that the petitioner may seek her remedy under the provisions of Code of Civil Procedure, 1908 (hereinafter for brevity Code). Thereafter she filed an application under Order IX Rule 13 of the Code before lower Court which was allowed vide impugned order dated 1-11-2003. Aggrieved by which this revision has been preferred by the original plaintiff.

3. Heard learned counsel for the parties and that of Intervener, and perused the record.

4. Learned counsel for the respondent No.2 raised preliminary objection that the revision is not maintainable as the case stands open and not decided by the impugned order. In this connection he relied on the principle of law laid down in Shiv Shakti Coop. Housing Society Vs. Swaraj Developers (2003) 6 Supreme Court Cases 659. I have gone through the said case law and the provision of 115 of the Code. I found nothing on the basis of which if revision against the impugned order can be said to be not maintainable. Had an application under Order IX Rule 13 of the Code been rejected it would have amounted the case decided. As such finality would have arrived at. Therefore the proviso added to Section 115 as amended vide Code of Civil Procedure (Amendment) Act 1999 (w.e.f. 1-7-2002), does not bar the present revision.

5. The first question for consideration before this court is whether a third party can maintain an application under Order IX Rule 13 of the Code or not. Perusal of the provisions contained in Rule 13 of the Order IX of the Code shows that it is only the defendant who can seek to set aside the decree passed ex-parte. Rather, only the defendant against whom the ex-parte decree passed, can maintain it. From the record it is very clear that Smt. Lata Chauhan (respondent no. 2) was not a party to the suit. Copy of the petition under Section 73 read with Section 74 of Indian Trust Act, 1882 moved by Anirudh Singh Katoch (Present revisionist) shows that there were only four defendants/ opp. party in the case, namely 1. Thakur Dan Singh Trust through its Chairman, Sri Ashok Singh Bist, 2. Smt. Leelawati Bist widow late Sri Thakur Dan Singh Bist, 3. Smt. Neelam Parihar and 4. Sri Ashok Singh Bist. Admittedly the respondent no. 2 was not a defendant. However it appears from the record that notices were issued to her (as she was heir of one of beneficiary) before the suit was decided ex-parte. Assuming for a moment that respondent no. 2 was the person affected by the decree and was not properly served, the only course left for her was to file a suit challenging the dec