An ex parte decree set aside in its entirety is set aside against all the defendants, and all the defendants are entitled to file a written statement.

H.G. Mishra, J.—This is defendant's revision against order dated 10th May, 1979, passed by II Civil Judge, Class II, Gwalior, where by he has been denied opportunity to submit written statement in answer to the suit.

2. The facts essential for decision of this revision are as under:

The plaintiff-non-applicant No. 1 Shankarlal instituted a Civil Suit No. 32-B of 1976 for recovery of Rs. 2530 against Mangilal and the applicant Ramdayal. This suit was decreed ex parte on 11th May, 1977 against Mangilal and the applicant.

3. Thereafter, only Mangilal (defendant-non-applicant No. 2) submitted an application under Order 9, Rule 13, CPC read with section 151 on 25-7-1977 for setting aside the ex-parte decree. In this application, Ramdayal (defendant-applicant) was also impleaded as non-applicant. This application was opposed by the plaintiff-non-applicant by his reply dated 5-11-1977. Ramdayal, by his reply dated 5-11-1977 supported the application and joined in the request for setting aside ex-parte decree. The case was registered as M. J. C. No. 36 of 1977. By order dated 8-10-1979, ex-parte decree was set aside. Thereafter, by order dated 10-5-1979, in the suit, defendant applicant has not allowed opportunity to file written statement on the ground that the decree will be deemed to have been set aside only against Mangilal and not as against the defendant-applicant Ramdayal, as he had not submitted any application under Order 9, Rule 13, Civil Procedure Code. It is against this order that the present revision has been filed.

4. In this revision, Shri P. R. Goyal, learned counsel for the defendant-applicant contended that once an ex parte decree is set aside in its entirety, all the defendants, whether they had submitted an application under Order 9, Rule 13, CPC or not, have a right to submit written statement. As such, the impugned order is illegal and without jurisdiction. Mr. R. C. Gupta, learned counsel for the plaintiff-non-applicant argued in support of the impugned order. Reliance was placed on the ratio of Mst. Suraj Kunwar Vs. Champalal and Others,

5. Having heard the learned counsel for the parties, I have come to the conclusion that the revision deserves to be allowed.

6. No doubt, the application under Order 9, rule 13, CPC read with section 151 was submitted by Mangilal, defendant only, yet he had impleaded besides Shankarlal-plaintiff, defendant-Ramdayal in that application. Ramdayal, as stated above, had filed reply, in which he has also joined in the request made by Mangilal for setting aside ex parte decree. Ultimately, by order dated 8-2-1979, the trial Court set aside the ex parte decree on the condition of payment of Rs. 50 by way of cost and directed payment thereof to be made by Mangilal. Relevant portion of this order is quoted below:

NYAYA KE HIT ME PRARTHI PRATlKARA. PRARATHANA PATRA 50/- HAR JANE PAR SWEEKAR KIYA JATA HAI HAR JANA 3 DIN ME JAMA HONE PAR EAK TARFA HATAYA JATA HAI.

PESHI 20-2-1979.

The construction put by the learned trial Judge on the aforesaid order imports restriction into it, which is not warranted by the language employed therein. Accordingly, when in pursuance of the said order costs were paid, the decree stood set aside in its entirety.

7. Further infirmity which appears to vitiate the impugned order is that the trial Court appears to have kept in mind while passing the impugned order the provisions of Order 9, Rule 13, CPC which run as under:

R. 13. 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 there was sufficient cause for his, failure to appear 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 whe