GOPINATH MAHAPATRA Vs. IMMAM BUX AND OTHERS

JUDGEMENT

(1.) This is a small matter raising an important point. The point is whether an ex parte decree declaring the title of the plaintiff over certain land, passed against three defendants can be set aside against all the defendants in a case under Order 9 Rules 13 of the Code of Civil Procedure at the instance of one of the defendants.

(2.) The facts of this case are in a small compass. The petitioner instituted title suit no. 437 of 1983 in the court of the subordinate Judge, First Court, Cuttack, for declaration that he was the owner of the suit land on the basis of purchase from defendants 1 and 2; that the defendants have no manner of right, title or interest therein and that the recording in respect of the land in Hal settlement is not correct. On Dec. 14, 1983 the suit was decreed exparte against all the defendants and the declarations sought were granted. Thereafter on April 24, 1985 defendant No.3 started the proceeding under Order 9, Rule 13 of the code to set aside the ex parte decree. By Impugned order, the learned subordinate Judge came to find that the suit summons was not duly served on defendant No.3 and set aside the ex parte decree against all the defendants on the ground that if the ex parte decree is set aside as against defendant No.3 alone, then there is likelihood of conflicting decisions. It is this order of the learned subordinate Judge which is assailed by the plaintiff in this revision.

(3.) Although in the application for revision the finding of the court below in the matter of service of suit summons on defendant No.3 has been challenged as not correct, the same was not pursued at the time of hearing, probably realising the limited powers of a revisional court. It was, however, argued that the case at hand was not one which empowered the court below to set aside the ex parte decree against all the defendants, since possibility of ultimate conflicting decisions cannot be a good ground for setting aside the whole decree.