IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 WP(C).No. 31870 of 2009(O) -------------------------- OS.215/2000 of PRINCIPAL SUB COURT, NORTH PARAVUR .................... PETITIONER: --------------- SHIVA, S/O.GOVIND NAIK, D.NO.E-44-1, 1476 SUVARNA BUILDING, DEENABANDHU COLONY, KARWAR ROAD, HUBLI-580 029. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SMT.GEETHA P.MENON RESPONDENTS: --------------- 1. THE FERTILIZER & CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL, BY ITS GENERAL MANAGER, MARKETING DIVISION, UDYOGAMANDAL. 2. CHIEF DISTRIBUTION MANAGER, MARKETING DIVISION, THE FERTILIZER & CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL, KERALA. 3. NAVADURGA WAREHOUSING CORPORATION, SUVARNA BUILDING, DEENABANDHU COLONY, KARWAR ROAD, HUBLI-580 029. 4. SUJAYANAND, S/O.SHIVA NAIK, OCC: NIL, R/C.SUVARNA BUILDING, DEENABANDHU COLONY, KARWARD ROAD, HUBLI- 580 O29. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 31870 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 9th November, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To call for the records relating to Ext.P7 order and set aside the same and allow Ext.P5 application as prayed for. 2. To hold that the order Ext.P2 setting aside the ex parte decree enures to the petitioner's benefit as well under the 1st proviso to Order 9 Rule 13 of the Code of Civil Procedure. 3. To pass an order of stay of all proceedings in the suit O.S.No.215 of 2000 on the file of the Subordinate Judge's Court of North Paravur, pending disposal of the above writ petition. 2. Petitioner is the second defendant in O.S.No.215 of 2000 on the file of the Sub Court, North Paravur. The above suit is one for recovery of money, and the respondents 1 and 2 are the plaintiffs. Respondents 3 and 4 in the present petition are defendants 1 and 3 in the suit. An ex parte decree was passed in the suit on 31.3.2004. Defendants 1 and 3 (respondents 3 and 4) moved an application to set aside the ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure. That application was allowed by P2 order setting W.P.C.No.31870/09 - 2 - aside the ex parte decree and restoring the suit to file. After the suit was restored, petitioner, the 2nd defendant, moved P5 application along with his written statement requesting that the setting aside of the ex parte decree be treated as applicable to all the defendants in the suit, and he also be permitted to contest the suit and have a decision on merits. Plaintiffs filed P6 objections to that application. The learned Sub Judge, after hearing both sides, declined the request of the petitioner/2nd defendant by P7 order. Propriety and correctness of P7 order is challenged in the Writ Petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and the facts and circumstances presented with reference to P7 order challenged in the writ petition, I find no notice to the respondents is necessary and it is dispensed with. Learned counsel for the petitioner inviting my attention to P1, copy of the plaint in the suit, submitted that the allegations raised by the plaintiffs clearly spell out that a decree in common as against all the defendants imputing that they are jointly and severally liable for the suit claim has been canvassed, and so much so, when the ex parte W.P.C.No.31870/09 - 3 - decree passed in the suit had been set aside at the instance of some of the defendants in the suit, it has to enure to the benefit of all the defendants in common. Though it has not been so specifically stated in the order setting aside the ex parte decree, having regard to the applicability of the first proviso to Rule 13 of Order 9 of the Code of Civil Procedure, according to the learned counsel, it is open to the court to permit the petitioner/2nd defendant also to contest the suit, receiving his written statement, treating that the decree had been set aside ex parte as against him as well in allowing of the application moved by the two other defendants in the suit. 4. The applicability of the first proviso to Rule 13 of Order 9 of the C.P.C. canvassed by the learned counsel to contend that the ex parte decree set aside at the instance of some other defendants in the suit has to be treated as in common for the other defendants as well in view of the allegations raised in the plaint imputing joint and several liability against the defendants does not at all carry conviction. When an ex parte decree is passed against several defendants, the ordinary rule is that, if at all, it is set aside, it is applicable only in the case of those who had applied for setting it aside. However, the first proviso to Rule 13 of Order 9 of the C.P.C. W.P.C.No.31870/09 - 4 - enables the court to set it aside even as against the others who had not appeared, if the nature of the decree requires it. The first proviso to the above rule reads thus: “Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.” It has to be noted the proviso does not confer any right on the party but only empower the court while setting aside an ex parte decree at the instance of one of the defendants to set aside that decree against all or any of the other defendants also where it is satisfied the decree is of such a nature that it cannot be set aside solely against the defendant who alone had applied for setting aside the ex parte decree. The rule would apply in cases where the decree is one and indivisible, the decree likely to be passed after setting aside the earlier ex parte decree would result in inconsistent decree, if it were not set aside against the other defendants also, the relief to which the applicant is entitled to in the suit could not effectively be given otherwise than by setting aside the decree as against the other defendants also and where the decree proceeds on a ground common W.P.C.No.31870/09 - 5 - to all the defendants. The fundamental principle to be followed in the applicability of the first proviso to Rule 13 of Order 9 C.P.C. is that if the ex parte decree is of such a nature that it cannot be set aside against the defendant who had applied only, it may be set aside as against all or any of the other defendants. But, it has to be noted that the applicability of the proviso has to be considered by the court at the time of setting aside the ex parte decree and not at a later stage after the restoration of the suit on setting aside the ex parte decree at the instance of any other defendant who had not applied for setting aside the ex parte decree against him. 5. Normally, in the case of a money claim, the general rule is that the ex parte decree is not set aside for the codefendant other than the applicant who has moved for setting aside the ex parte decree. In Vasant v. Tukaram (AIR 1960 Bombay 485) where a suit for damages was instituted against three defendants who were partners and it was decreed ex parte against one of them, and against the other two after hearing them, and the ex parte defendant applied to set it aside, it was held no order should be made setting it aside against the other defendants also. The allegation in P1 plaint that the first defendant is a proprietary concern and the second and W.P.C.No.31870/09 - 6 - third defendants are having interest and control over the first defendant, which has been canvassed to contend that the ex parte decree passed against the second defendant has also to be treated as set aside on the allowing of the application moved by the other defendants for setting aside the ex parte decree, applying the first proviso to Rule 13 of Order 9 of the C.P.C., in the given facts of the case and the principles of law applicable, is found to be devoid of any merit. I do not find any impropriety or illegality in P7 order passed by the court below. Writ Petition lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE