1. The plaintiff was a purchaser of an item of land from the first defendant and she seems to have had some difficulty in obtaining possession of the property, which the third defendant claims as his by virtue of long possession. She brought a suit against the first defendant, her vendor, the third defendant, who claimed to have been in enjoyment of the property, and the second defendant, a tenant of the third defendant, for possession of the land and in the alternative for the return of the purchase money with damages.
2. The first defendant was declared ex parte. That meant that the plaintiff was able to obtain the return of the purchase money with which she would have been satisfied. She therefore reported to the Court that she did not press the suit against defendants 2 and 3, and the suit as against them was withdrawn, the obtained merely a decree against the first defendant for the purchase money and damages. Unfortunately for the plaintiff, the first defendant was able to get the ex parte decree set aside on a technical ground. As the first defendant might now be able to satisfy the Court that he had given her a valid title and the plaintiff would not be able to obtain possession from the third defendant because she had let the suit against him be dismissed, she was in danger of losing both the land and her money. In her counter to the first defendant's petition she therefore prayed that in case the petition of the first defendant were granted, the whole decree might be set aside and she be allowed to proceed against the other defendants also. The learned District Munsif of Vizagapatam thought that this was only just, and so he set aside the entire decree, restoring the suit to the condition in which it was when originally filed. The third defendant appeals on the ground that this order is illegal.
3. It is no doubt true - as the learned District Munsif felt-that it would be equitable and just to allow the plaintiff to proceed against the third defendant because her withdrawal of the suit against the second and the third defendants was only because the first defendant had been declared ex parte: !but the question is whether the learned District Munsif had any power to do this. The relevant provisions of the Civil Procedure Code, are clearly worded and afford little support for the order of the learned District Munsif. Order 9, Rule 13, which deals with the setting aside an ex parte decree, contains a provision which enables the Court in certain cases to set aside the decree against the other defendants also; but that can only be done where the decree is of such a nature that it cannot be set aside as against such defendant only. There is no such difficulty in this case. Moreover, the decree cannot be said to be against the third defendant. On the contrary, it is in favour of the third defendant. Order 23, which deals with the withdrawal and adjustment of suits, does not make any provision for withdrawing a withdrawal; and so it would seem that there is no provision in the Code whereby the withdrawal of a suit against a defendant can be cancelled. The only thing that can now, e done for the plaintiff is to grant her permission under Order 23, Rule 1 to file a fresh suit against the third defendant.
4. The petition is therefore allowed with regard to that part of the lower Court's order restoring the suit against defendants 2 and 3 and an order will be passed granting permission to the plaintiff to file a fresh suit against the second and third defendants if she so desires.
5. The first defendant has appeared in this Court through an advocate; but clearly the first defendant cannot be affected by the order of the lower Court or by any order that this Court might pass in revision. Under the circumstances of this case, there will be no order as to costs.