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"Whether, under the proviso to Order 9 Rule 13 of the Code of Civil Procedure, a decree passed in favour of the contesting defendants can be set aside as against a defendant also being part of the same suit, on an application made by him, for setting aside an ex-parte decree against him."

7. The learned counsel appearing on behalf of the appellant Bank vehemently argued before us that on account of the ex- parte decree against the respondent no. 6, the alternative claim against respondent nos. 1 to 5 was dismissed without trial, therefore, the Division Bench of the High Court was in error in setting aside the decree of dismissal passed in favour of respondent nos. 1 to 5. Thus, according to Mr. K.N.Bhatt, learned senior counsel for the appellant Bank, on respondent no. 6's default being condoned, the suit filed by the appellant Bank was rightly restored in toto by the learned single judge which, however, was set aside in appeal. Learned senior counsel for the appellant Bank further contended that in the present case, the ex-parte decree passed by the learned single judge was of such a nature that it could not be set aside only against respondent no. 6 and hence the order of the learned single judge setting aside the decree in its entirety was fully justified. On the interpretation/construction of the provisions of Order 9 Rule 13 of the Code, in particular, its proviso, the learned counsel appearing for respondent nos. 1 to 5 strongly urged that on a plain reading of this provision under Order 9 Rule 13 of the Code and the proviso therein, there should not be any difficulty to come to the conclusion that the language of Order 9 Rule 13 is very clear and that the said provision will apply only to a decree which has been passed ex- parte and to the defendants against whom, ex-parte decree has been passed and not against the defendants who have been successful in the suit and the suit has been dismissed in their favour. According to the learned counsel for the respondent nos. 1 to 5, the proviso to Order 9 Rule 13 of the Code also contemplates setting aside of an ex-parte decree only against the defendants who were proceeded ex-parte but had not made an application for its setting aside. Relying on paragraph 8 of a Full Bench decision of the Assam High Court reported in Khargesh Chandra Vs. Chandra Kanta Barua, AIR 1954 Assam 183, learned counsel for respondent nos. 1 to 5 contended that two significant changes in the provisions under the Code of 1908 namely, the words, `as against him' have been added after the words `shall make an order setting aside the decree and the proviso' to the rule. According to the learned counsel for respondent nos. 1 to 5, these changes left no room for doubt that as a general rule, the decree was to be set aside as against the defendant making the application under Order 9 Rule 13 of the Code but in exceptional cases, contemplated by the proviso, it could be set aside against all or any of the other defendants. Further, relying on paragraph 8 of the aforesaid decision, the learned counsel for the respondent nos. 1 to 5 argued that the decree set aside must be a decree "against the defendant and not a decree in their favour". Accordingly, the learned counsel for the respondent Nos. 1 to 5 contended that proviso to Order 9 Rule 13 of the Code cannot have any application as the decree dated 10th of March, 1987 was in favour of respondent nos. 1 to 5 and not against them. It was next contended on behalf of learned counsel for the respondent nos. 1 to 5 that the learned single judge was not correct in reviving the suit in its entirety on the ground that the decree was one and indivisible. According to the learned counsel for the respondent nos. 1 to 5, in view of the liability of the respondent Nos. 1 to 5 and in view of the alternative reliefs claimed in the suit itself, the decree was separate and, therefore, it could be split up. Therefore, the learned counsel for the respondent nos. 1 to 5 contended that the Division Bench of the High Court was fully justified in setting aside that portion of the decree by which the suit against respondent nos. 1 to 5 was dismissed.

From a plain reading of the provisions made under Section 108 of the Code of Civil Procedure, 1882, it is evident that on the Court being satisfied with the merits of an application for setting aside of an ex-parte decree, it was required to set aside the decree and proceed with the suit. The words used in this section, namely, "the decree" "set aside the decree" and "proceeding with the suit" would clearly show that in Section 108 there was no provision to set aside an ex parte decree only against the defendant against whom the ex parte decree was passed and who had, accordingly, made an application for setting it aside. Therefore, it is clear from this provision that if an ex parte decree was to be set aside by the court, the same had to be set aside in toto i.e. as against all the defendants in the suit. In our opinion, the expression "proceeding with the suit" would also clearly show that the intentions of the Legislature that the court was required to proceed with the suit, i.e. between all the plaintiffs and the defendants. However, in the interpretation of Section 108 particularly "decree", "ex parte decree" and "proceeding with the suit" there was a difference of opinion expressed by different High Courts in India, that is to say, as to whether the ex parte decree had to be set aside in toto, or whether the same was required to be set aside only as against the party against whom the ex parte decree was passed. This difference of opinion of different High Courts was, however, removed by the introduction of Order 9 Rule 13 of the Code.

Keeping this in mind, let us now examine whether the proviso to Order 9 Rule 13 of the Code gives ample power to the court to set aside the decree passed in favour of the contesting defendants at the time of setting aside the ex parte decree against other defendants. Therefore, let us now deal with the proviso to Order 9 Rule 13 of the Code. It provides that in cases where the decree is of such a nature that the same cannot be set aside only as against the defendant applying for setting it aside, the decree could also be set aside as against any or all of the other defendants. Therefore, in our view, this proviso confers power on the court to set aside the entire decree if the court is of the view that the decree passed was of such a nature that the same could not be set aside only as against the defendant applying for setting aside the decree, the decree could also be set aside as against any or all of the other defendants. Therefore, this proviso clearly confers powers on the Court to set aside the entire decree where the said decree was of such a nature that it is expedient in the interest of justice to set aside the decree as against any or all of the other defendants also. After carefully examining the provision under Order 9 Rule 13 of the Code along with its proviso, the following, therefore, emerges:-

14. As noted herein earlier, the heading of Order 9 Rule 13 of the Code starts with "setting aside decrees ex parte" But, if we read the entire provision under Order 9 Rule 13 of the Code, it would be clear that the said provision provides that the decree must be ex parte against one defendant or ex parte against all the defendants. The proviso also does not provide that the decree can be set aside against the defendants, other than the applying defendant, only if it is ex parte against them also. The only requirement for the applicability of this order is that the decree should be ex parte against the defendant applying to have it set aside. Thus, the language of the order does not suggest that for the order to apply the decree must be entirely ex parte. Secondly, if the proviso was to apply only if the decree was ex parte against the other defendants also, that would have rendered the proviso practically infructuous, as in such a situation, the other defendants would have an independent right to have the decree set aside against them. In our view, the idea behind the proviso is that if the decree is being set aside as against some defendants, and the decree as against the other defendants is connected, interlinked or dependent on that part of the decree which is being set aside, the decree may have to be set aside as against the other defendants also. There is another aspect to be considered by us relating to the provision under Order 9 Rule 13 of the Code The proviso to Order 9 Rule 13 does not use the expression "ex parte decree" but it had used the term "decree". Therefore, the question would be whether the proviso to Order 9 Rule 13 says that the decree would mean an ex parte decree. This can be looked at from two angles. We shall consider both of them and then determine which of the two is the most appropriate. One of the ways to look at that the term "decree" over here means the ex parte decree, which was passed against the defendant who had afterwards applied for setting it aside. This interpretation can be illustrated with the help of the following hypothetical situation. Let us assume that there are many defendants and the decree is passed ex-parte against all the defendants, defendant No.1 subsequently applies for setting aside the said ex-parte decree, according to the proviso to Order 9 Rule 13 of the Code, if the decree is of such a nature that it cannot be set aside as against the defendant No.1 only, then it would be open for the court to set aside the decree as against all or any of the other defendants as well. Of course, we are considering the decrees which have been passed ex parte against all of them at the present moment. Thus, according to this interpretation, for the court to be able to exercise power under this proviso, the word "decree" used in the proviso must be construed to mean ex-parte decree only. The arguments which can be made in support of this interpretation may be summarized as follows: