BALANAND Vs. KAMALA NAND

JUDGEMENT

(1.) This revision petition arises out of a suit to set aside an ex parte decree on the ground of fraud. The Subordinate Judge of Rohru decreed the suit and that decision was upheld in appeal by the learned District Judge of Mahasu. The value of the suit and of the appeal having, been Rs. 200/-, no second appeal lies. Under para 35, Himachal Pradesh (Courts) Order, however, it is open to this Court to interfere in revision, where there is an important question of law or custom, requiring further consideration.

(2.) Learned counsel for the petitioner argued that since the application under Order 9, Rule 13, C. P. Code, was unsuccessful, a separate suit to set aside the ex parte decree was barred by res judicata. This objection was apparently not taken before the trial Court. It was, however, argued before the learned District Judge, who has pointed out that the application under Order 9 Rule 13 was dismissed on a point of limitation and, consequently, the suit was not barred. In Ramballabh Jasraj v. Dharmsi Jetha and Co.', AIR 1937 Nag 268 (A), the facts were that an application under Order 9, Rule 13 for setting aside an ex pare decree was dismissed in default of parties and there was no finding on merits. It was held by Gruer J., that, under the circumstances, the lower appellate Court was competent to consider the propriety of passing the ex parte order. On the same analogy, it can be said here that the dismissal of the application under Order 9 Rule 13 on the point of limitation was no bar to the defendant fiilng a separate suit to set aside the ex parte decree on the ground of fraud. In -' Subbaiyar v. Kallapvian Pillai', AIR 1914 Mad 158 (B), a Division Bench of that High Court went a step further and remarked that.

(3.) Secondly, it was urged by learned counsel that the ex parte decree could have been set aside, if at all, only so far as it went against Kamalanand and not against all the defendants. The learned District Judge has pointed out that, out of the seven defendants, Sukhnand, defendant 1, entered into a compromise with Balanand and the decree passed against him was in terms of the compromise. Therefore, the decree, so far as it went against Sukhnand, would not be affected and that is exactly what the District Judge has said, As regards the others, the District Judge remarks that the decree (setting aside the ex parte decree) would enure for the benefit of all the defendants and, therefore, the non-joinder of the defendants, other than Sukhnand and Kamalanand, in the suit would not be fatal. Reliance was placed by the learned District Judge on the provisions of Section 99, C. P. C. A persual of the ex parte decree in question shows that the plaintiff was granted a decree for possession of 11 Mohru trees as against defendants 2 to 7. The point for consideration is whether this decree is capable of being split up. Under proviso to Order 9 Rule 13, where the decree is of such a nature that it cannot be set aside as against that defendant, who applies under that Rule, it may be set aside as against all other defendants also. It is difficult to conceive how the decree for possession of 11 Mohru trees can be split up into two parts. Either the plaintiff gets possession over these trees or he does not. The position would be different if various trees would have been in possession of various defendants and specific decrees for possession had been passed against them individually. That is not, however, the case here. Consequently, on the anagoly of the proviso to Order 9, Rule 13, I would hold that the ex parte decree was rightly set aside in its entirety. It was not necessary, as learned counsel suggested, that the suit filed by Kamalanand should have been a representative one.