S.K. Ray, Actg. C.J.
1. This is a plaintiffs' application in revision to quash the order of the Subordinate Judge, Baripada dated 15-12-1973 setting aside an exparte decree passed in a partition suit at the instance of the defendants in that suit. The grounds for setting aside the ex parte decree were that defendants 1 and 2 who were looking after the case on behalf of all the defendants were lying ill on the date of hearing of the suit which was posted to 16-3-1973. Evidence was adduced in support of the ground of illness. Ultimately the Subordinate Judge in the last paragraph of her order has stated as follows:--
'The petition for setting aside the ex parte decree does not deserve to be allowed on account of the circumstances discussed above. However, as the suit property is worth Rs. 16,000/-, the petition will be allowed and ex parte order will be set aside provided (he petitioners pay Rs. 100/- as cost and compensation to the opposite parties-plaintiffs by 21-12-1973.'
On the very day when the aforesaid order was passed, the defendants tendered Rs. 100/-dirccted to be paid as costs to the plaintiffs' lawyer who on receipt of the amount made the following endorsement in the order-sheet: 'Received Rs. 100/- without prejudice to file revision against the order.' This endorsement is dated 21-12-1973.
2. Order 9, Rule 13, Civil P. C. specifies the grounds on which an ex parte decree can be set aside. Il provides that an ex parte decree may be set aside if the Court is satisfied that the summons was not duly served, or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing.
3. As the Subordinate Judge has ;found, none of the grounds was established by the defendants. Therefore, she had no jurisdiction at all to set aside the ex parte decree, after finding that the grounds envisaged under Order 9. Rule 13, Civil P. C. were, not proved, on compassionate ground that suit is of high valuation. Therefore, on 'merits, the order would not be sustainable 'and is liable to be set aside.
4. Mr. Misra, however, takes a point that once the plaintiffs have accepted the costs awarded by the impugned order and have thereby accepted a part of the order, they cannot be allowed to reprobate the other part which is against them. In other words, once they have accepted the costs they cannot now challenge the order setting aside the ex parte decree. In support of this proposition he has relied upon a number of decisions. There is no doubt that where there is a conditional order and the party accepts one part of the order which benefits him, he cannot reprobate the other part of the order which is against him. But that principle is subject to one qualification, namely, that it is always to be determined whether the party accepting costs has in fact approbated or not. That is always a question of fact to be decided upon all circumstances in the case. If the facts apparent or appearing on the face of record do not establish that the plaintiff in reality by accepting the costs approbated a part of the order, then the aforesaid principle would not apply. But it appears from the endorsement of the lawyer for the plaintiffs extracted above that he never intended to approbate any part of the order on behalf of his clients by accepting costs. He has clearly stated there that he has not relinquished the right of his clients to go up in revision against that order despite the fact of his actual receipt of the money. He says that his acceptance is without prejudice to the rights of his clients. The words 'without prejudice' came in for interpretation in the case of Umesh Jha v. State, AIR 1956 Pat 425. There it was held,
'The words 'without prejudice' import into any transaction that the parties have agreed that as between themselves the receipt of money by one and its payment by the other shall not of themselves have any legal effect on the rights of the parties, but they shall be open to settlement by legal controversy as if the money had not been paid.'
Therefore, in deciding whether he has approbated a part of the order or not it will be decided on the footing as if the costs had not been accepted by the plaintiffs' lawyer. In the circumstances narrated above, I am clearly of opinion that the lawyer for the plaintiffs never approbated a part of the order on behalf of his clients by physical receipt of the money when at the time of receipt of that amount he has explicitly reserved his right to move the court in revision. There-j fore, in my opinion, this point fails.
5. The second limb of argument of Mr. Misra is that even if the impugned order is not sustainable in law, nevertheless, the power of revision of this court under Section 115, Civil P. C. being discretionary the order under revision should not be interfered with. He placed reliance upon a decision of this court in the case of Dinamani v. Bimbadhar, AIR 1969 Ori 28. There it has been held,
'It is discretionary with the High Court as the word used is 'may'. Even where the court acts contrary to law on a question which impinges on the question of jurisdiction the High Court is not bound to interfere if the conduct and the act of the petitioner do not arouse its conscience.'
I think he cannot invoke the aid of this decision for the simple reason that the order setting aside the ex parte decree passed by the Subordinate Judge was passed against the mandate of express provision of law, namely, Order 9, Rule 13, Civil P. C. and, as such, was without jurisdiction. The error is not merely an error of law. On the contrary on an overall consideration of the facts of the case I do not think that the discretion envisaged in the aforesaid decision should be exercised. This is a pure partition suit between, the two brothers in which the contesting defendants' main plea was one of adverse' possession, in other words, one of ouster and a claim to certain item of property as self-acquired property. In these circumstances, I do not think that I would be justified in exercising my discretion under Section 115, Civil P. C. to ignore the order which has been passed completely without jurisdiction and in violation of the express provision of Order 9, Rule 13, Civil P. C. I would, therefore, set aside the order under revision and direct the plaintiffs to refund Rs. 100/- to the defendants or their lawyer in the trial court within one month from today, if not already refunded. In case, neither the defendants nor their lawyer accepts the money, the plaintiff shall deposit the same in the trial court.
6. It is, however, needless to say that the defendants have right to go in appeal against the ex parte decree, if they have not lost their right by limitation. The revision is allowed. In the circumstances, there would be no order for costs.