Case: Bank Of India Vs. M/S. Mehta Brothers

with. The said paragraph noted two significant changes which were effected in Order 9 Rule 13 of the Code namely, the words "as against him" were added after the words "shall make an order setting aside the decree" and the proviso to the Rule. Accordingly, from this paragraph of the Full Bench decision, the changes left no room for doubt that as a general rule, the decree was to be set aside against the person 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. Emphasis was made in this paragraph that the decree to be set aside must be a decree "against the defendants and not a decree in their favour". It is needless to say that the learned single judge of the Delhi High Court had followed the minority decision of the Assam High Court and held that the decree was indivisible which was set aside by the Division Bench in the aforesaid manner. In our view, considering the issues framed in the present suit and the reliefs claimed by the appellant Bank and the findings arrived at on such issues, as noted herein above, we are of the opinion that the learned single judge was fully justified in restoring the suit in toto and was correct in setting aside the entire decree and restore the suit in its entirety on an application under Order 9 Rule 13 of the Code which also, in view of our discussions made herein earlier, was correct in the approach of Order 9 Rule 13 of the Code. 21. Reliance on paragraph 8 of the Full Bench decision of the Assam High Court as relied on by the learned counsel for respondent Nos. 1 to 5 cannot be considered to be a good law in view of the fact that it itself accepts the position that in exceptional cases contemplated by the proviso under Order 9 Rule 13 of the Code, the ex-parte decree could be set aside not only on the defendant who applied for setting aside the ex-parte decree but also on or any other defendants. In view of the discussions made hereinabove, we are not in a position to agree with the submission of the learned counsel for respondent Nos. 1 to 5 who placed strong reliance on paragraph 8 of the aforesaid decision to contend that the decree to be set aside must be a decree "against defendants and not a decree in their favour", irrespective of the fact whether the decree was passed in favour of the defendants on contest. 22. As noted herein earlier, we have already discussed that in the judgment, it was held that respondent No. 6 against whom the ex-parte decree was passed, was only liable to pay the decretal amount to the appellant Bank. The suit was dismissed as against respondent Nos. 1 to 5 only on the ground that the claim of the appellant Bank was satisfied against respondent No. 6 and in view of such relief already obtained by the appellant Bank against respondent No. 6, Issue Nos. 2, 7 & 8 were held in favour of respondent Nos. 1 to 5 and as a result of that, the suit was dismissed on contest as against respondent Nos. 1 to 5. Accordingly, we are of the firm opinion that the ex parte decree was indivisible and rightly set aside not only against respondent No.6 but also against respondent Nos.1 to 5. Since no argument was advanced by the learned counsel for the appellant Bank that the findings of the learned Single Judge as well as the Division Bench on the question whether there was sufficient cause for respondent No.6 to get the ex-parte decree set aside, we do not intend to examine the correctness of the findings of the learned single judge as well as of the Division Bench to the extent that respondent No. 6 had made out sufficient cause for non-appearance on the date, the suit was decreed ex-parte against it. 23. Before we conclude, we may mention one short submission of the learned counsel for respondent Nos. 1 to 5. According to the learned counsel for respondent Nos.1 to 5, it was not open to the appellant Bank to restore the suit in toto on the application under Order 9 Rule 13 of the Code filed by respondent No.6, because the appellant Bank did not choose to prefer any appeal against the order of dismissal of the suit passed in favour of respondent Nos.1 to 5. In view of our discussions made herein above in which we have already come to the conclusion that the decree was indivisible and was dependent on the decision of the issues indicated herein earlier, it was not possible for the court to set aside the ex parte decree only against respondent No.6. Therefore, we do not think that this argument of the learned counsel for respondent Nos. 1 to 5 would be of any help. That apart, the learned single judge having set aside the decree in toto and restored the suit in its entirety, it was not necessary for the appellant Bank to file any appeal against the dismissal of the suit as against respondent Nos.1 to 5.24. Accordingly, we set aside the judgment of the Division Bench of the Delhi High Court so far as it had set aside the order of the learned Single Judge restoring the suit in its entirety and therefore, the judgment of the learned single judge is restored to its original file. Since, the suit of the appellant Bank was filed in the year 1982 without expressing any opinion on the merits of the suit, we request the learned single judge to decide the suit at an early date preferably within six months from the date of supply of a copy of this order to him. 25. For the reasons aforesaid, the

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our view, the Division Bench was not justified in setting aside the above part of the order of the learned Single Judge on the ground that the decrees were two distinct decrees : one against respondent No.6 and one in favour of the respondent Nos. 1 to 5. It is to be noted that the judgment of the learned single judge as well as of the Division Bench had not proceeded on the basis that the decree was entirely ex parte against all the defendants. Therefore, we have to see the nature of the decree for the purpose of coming to a proper conclusion whether the decree could be indivisible or the decree that was passed were two separate distinct decrees. In this connection, it would be important to refer to a minority decision of the Assam High Court in the case of Khargesh Chandra Vs. Chandra Kanta Barua [AIR 1954, Assam 183], which would be relevant for us to illustrate and answer thison paragraph 8 of the Full Bench decision of the Assam High Court as relied on by the learned counsel for respondent Nos. 1 to 5 cannot be considered to be a good law in view of the fact that it itself accepts the position that in exceptional cases contemplated by the proviso under Order 9 Rule 13 of the Code, the ex-parte decree could be set aside not only on the defendant who applied for setting aside the ex-parte decree but also on or any other defendants. In view of the discussions made hereinabove, we are not in a position to agree with the submission of the learned counsel for respondent Nos. 1 to 5 who placed strong reliance on paragraph 8 of the aforesaid decision to contend that the decree to be set aside must be a decree "against defendants and not a decree in their favour", irrespective of the fact whether the decree was passed in favour of the defendants onnoted herein earlier, we have already discussed that in the judgment, it was held that respondent No. 6 against whom the ex-parte decree was passed, was only liable to pay the decretal amount to the appellant Bank. The suit was dismissed as against respondent Nos. 1 to 5 only on the ground that the claim of the appellant Bank was satisfied against respondent No. 6 and in view of such relief already obtained by the appellant Bank against respondent No. 6, Issue Nos. 2, 7 & 8 were held in favour of respondent Nos. 1 to 5 and as a result of that, the suit was dismissed on contest as against respondent Nos. 1 to 5. Accordingly, we are of the firm opinion that the ex parte decree was indivisible and rightly set aside not only against respondent No.6 but also against respondent Nos.1 to 5. Since no argument was advanced by the learned counsel for the appellant Bank that the findings of the learned Single Judge as well as the Division Bench on the question whether there was sufficient cause for respondent No.6 to get the ex-parte decree set aside, we do not intend to examine the correctness of the findings of the learned single judge as well as of the Division Bench to the extent that respondent No. 6 had made out sufficient cause for non-appearance on the date, the suit was decreed ex-parte againstwe set aside the judgment of the Division Bench of the Delhi High Court so far as it had set aside the order of the learned Single Judge restoring the suit in its entirety and therefore, the judgment of the learned single judge is restored to its original file. Since, the suit of the appellant Bank was filed in the year 1982 without expressing any opinion on the merits of the suit, we request the learned single judge to decide the suit at an early date preferably within six months from the date of supply of a copy of this order to him.