SOBHAMAY BISWAS Vs. GOPAL ROY

JUDGEMENT

(1.) HARISH TANDON, J.: This revisional application is directed against order No.90 dated June 5, 2009 passed by learned Civil Judge (Junior Division) Tehatta, Nadia in Miscellaneous Case No. 31 of 2006 by which an application under Order 9 Rule 13 of the Code of Civil Procedure was allowed.

(2.) BY assailing the said order, plaintiff/petitioner raises a point that if an application under Order 9 Rule 13 of the Code praying for setting aside the ex parte decree at the instance of some of the defendants has been dismissed, the subsequent application under the same provision by the other defendants is not maintainable.

(3.) PRIOR to incorporation of Order 9 Rule 13 with proviso thereto, section 108 of the Code of Civil Procedure 1882 contained a provision for setting aside the ex parte decree against the defendant upon satisfaction of the court that the summons were not duly served. However different words used in the said section namely "decree', "set aside the decree" and "proceeding with the suit" would suggest that the ex parte decree passed only against the applying defendant should be set aside but by insertion of the word "proceeding with the suit" requires the ex parte decree to set aside in toto as against all the defendants in the suit.