IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.177 of 2009 BHARAT BHAGAT Versus SHEOPUJAN BHAGAT & ORS ----------- 2. 23.4.2009 Heard Counsel for the appellant. It appears that the court below while dismissing the Miscellaneous case was quite unmindful of the provisions under Order 9 Rule 13 C.P.C. which in no uncertain terms provides that where a decree is passed ex-parte against the defendant, he may apply to the court by which the decree was passed, for an order to set aside the decree. This provision with the first proviso also clearly lays down that where a decree of such a nature is passed that it cannot be set aside against such defendant only, it may set aside the decree against all or any of the defendants. This Court believes that there can be no two interpretation of the aforesaid provision under order 9 Rule 13 C.P.C. Judged in this background this court cannot approve the impugned order inasmuch as all that has been recorded in the aforesaid cryptic order is that the application filed by the defendant petitioner for setting aside the ex-parte order was not maintainable and only an appeal would lie against such order. As this is a manifest error in law, this court would set aside the impugned order and remit the matter back to the court below to reconsider the prayer of the petitioner and pass a fresh order in accordance with law. 2 It would be open for the court below to adopt its full course for deciding a Miscellaneous case and pass its order after considering the facts and circumstances of the case as also requirement under law. Let it be however made it clear that this court has expressed no opinion on the merits of the case of the appellant. With the aforesaid observations and directions this appeal, to the extent indicated above, is allowed. Narendra/ ( Mihir Kumar Jha, J. )