JUDGMENT

Simpson, A J C - This is an application under Section 115 of the Civil Procedure Code for revision. The applicants were plaintiffs in a suit for foreclosure. They sued as heirs of Ram Adhar, the mortgagee. The contesting defendants made it one of their chief pleas that Ram Adhar had left three daughters, who were his heirs, and consequently the plaintiffs bad no right to sue. With the consent of the plaintiffs these three daughters were impleaded as Defendants 9,10 and 11. They put in no appearance, and a decree was passed which was ex parte as regards them. A principal issue had been directed to a custom of exclusion of daughters from inheritance and this was decided against the daughters Plaintiffs and Defendant No. 7, who was a co-plaintiff impleaded as a defendant, obtained a decree for foreclosure against Defendants 1, 2, 3, 9, 10 and 11. The meaning of this decree is that the decree holders are entitled to foreclose the property now in the possession of the Defendants 1, 2 and 3, and that Defendants 9, 10 and 11 are barred from contesting the rights of the decree-holders to be the true representatives of the mortgagee. It will be seen that it is a decree against the Defendants 9, 10 and 11 also, although the decree-holders cannot foreclose any property of theirs. This decree was passed on 28th September 1923. Nearly three months later, on 19th December 1923, the Defendant No. 10 put in an application under Order 9, Rule 13. She satisfied the Court that the summons had not been duly served on any of the Defendants 9, 10 and 11, and she claimed to have the ex parte decree set aside. The decree-holders were notified. Their pleader stated: "I oppose the application, but I agree that the decree, so far as it affected the rights of the applicant, be set aside." This admission is of importance with regard to the present application. I am not prepared to hear these decree-holders in revision upon any point which they gave up in the Court below. Accordingly, their first point that the application was beyond time cannot be raised now. On the face of it the application was within time; for it sets forth that the applicant did rot come to know of the decree till 24th November 1923. The second point is that the applicant was not entitled to apply under Order 9, Rule 13, because she was only a pro forma defendant, and there was no decree against her. In the face of the admission I refuse to take up this point either. Lastly, it is said that the decree ought to have been set aside in its entirety. It will be remembered that the decree-holders acquiesced in the decree being set aside, so far as it regarded Defendant No. 10, but the Court went further and set the decree aside altogether. Order 9, Rule 13, lays down that the decree is to be set aside as against the applicant. That is the general rule. The rule, however, contains a proviso that where the decree is of such a nature that it cannot be set aside against such defendant only, it may be set aside against all or any of the other defendants also. The learned Munsif has acted under the proviso. He had power to do so. I should feel reluctant in proceedings in revision to interfere with such an order. But I am further of opinion that this decision was right. It would produce an awkward state of things if the applicants were allowed to hold a decree for foreclosure valid against the mortgagor, but not valid against a rival claimant of the mortgagee right. The mortgagor might be made to pay twice over. For these reasons, this application in revision is dismissed with costs.