1. The circumstances out of which this application has arisen are fully given in the order of the learned Munsif of Deoband. One of four defendants had made appearance in the suit on 18th April 1933 and the suit as against him was dismissed; but an ex parts decree was given against the other three defendants. One of them applied under Order 9, Rule 13 to have the ex parte decree set aside, and the Court, after fully discussing the merits of the case with the object of showing that the decree sought by the plaintiff against the four defendants was one and indivisible, set aside the whole decree. It is urged in support of the present application that the Court had no jurisdiction under Order 9, Rule 13 to re-open a decree that had been pronounced in favour of the applicant after contest.
2. I have been referred to three cases, in which a somewhat similar matter has come before three other High Courts, namely, Ghonnu Mal v. Sant Das (1913) 18 I.C. 327, Monoku v. Sita Ram (1894) 18 Bom. 142 and Mohini Chowdhurani v. N.N. Roy (1900) 4 C.W.N. 456. On the other hand there is an important decision by a Full Bench of this Court in the case of Bhura Mal v. Har Kishen (1902) 24 All. 383. Aikman, J., in that case remarked:
In my opinion, the Court must be assumed to have power to set aside the whole decree, if the decree from its nature is one and indivisible or if, in order to give to the defendants against whom MI ex parte decree has to be pronounced the relief to what they are entitled, it must be set aside as a whole.
3. In the present case the Court has discussed the circumstances fully and has come to the conclusion that the position would be altogether anomalous if the ex-parte decree against defendant 2 were to be set aside and the decree against defendant 1 were to be allowed to stand. It lis sufficient for the purposes of the present case to say that if the proviso to Rule 18 of Order 9, Civil P.C., can be used in the circumstances described in the case which came before the Full Bench, the Court cannot be acting irregularly in using that proviso in the present case. The application is therefore dismissed with costs.