LexBANK OF INDIA versus M/S MEHTA BROTHERS & ORS.
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[2008] 13 S.C.R. 900 A BANK OF INDIA \/. M/S MEHTA BROTHERS & ORS. (Civil Appeal No. 2982 oF 2001) B SEPTEMBER 23, 2008. [TARUN CHATTERJEE AND DALVEER BHANDARI JJ.] Code of Civil Procedure, 1908 - 0. 9 r. 13 and its pro- viso - Scope of - In an application for setting aside the ex- c parte decree whether decree passed in favour of some of the contesting defendants can be set aside - Held: If the decree is indivisible, it can be set aside not only against the defen- dant who applied for setting aside the ex-parte decree, but also against all or any of the other defendants, regardless of the D fact whether they appeared, contested or not - The term "de- cree" in the first proviso actually meant a decree in general and not ex-parte decree. A suit filed by appellant-Bank was decreed ex-parte against respondent-Bank, and the same was dismissed E qua respondent Nos. 1 to 5 (the contesting defendants). Respondent-Bank filed application under Order 9 Rule 13 CPC, for setting aside the ex-parte decree. Single Judge of High Court set aside the decree in toto i.e. even qua respondent Nos. 1 to 5, relying on proviso to Order 9 Rule F 13. Division Bench held that Single Judge could have set ) - aside only the ex-parte decree against the respondent- Bank and could not have set aside the decree in favour of respondent Nos. 1 to 5. 1-lence the present appeal. Allowing the appeal, the Court G HELD: 1.1 A reading of Order 9 Rule 13 CPC would show that an ex-parte decree was ordinarily to be set aside only against the defendant against whom the decree was ·- i ex-parte and the suit was to be revived only qua the said H 900 BANK OF INDIA v. M/S MEHTA BROTHERS 901 & ORS. defendant applying for setting aside the ex-parte decree. A It is true that the heading of Order 9 Rule 13 starts with the expression "setting aside of an ex-parte decree". But, if the entire provision is read, it would be clear that the said provision provides that the decree must be ex-parte .. against ona defendant or ex-parte against all th~ defen- dants. The proviso also does not provide that the decree B can be set aside against the defendants, other than the applying defei1dant, only if it is ex-parte against them also. The proviso 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 c the decree as against any or all of the other defendants also. The only requirement for the applicability of this Or- der is that the decree should be ex-parte against the de- fendant applying to have it set aside. Thus, the language ., of the Order does not suggest that for the Order to apply, D the decree must be entirely ex-parte. [Paras 13 and 14) (914- 0-E 913 B-C 914-AB] 1.2 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 E situation, the other defendants would have an indepen- dent right to have the decree set aside against them. 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 F 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. [Para 14) (914 0-F] 1.3 The term "decree" in the first proviso actually meant a decree in general. The proviso to Order 9 Rule 13 G does not use the expression "ex- parte decree" but it had ' ... used the term "decree". If the words used subsequent to the word 'decree' in the proviso were to mean ex-parte decree, the Legislature would have expressly provided so. Therefore, from the intention of the Legislature it can- H 902 SUPREME COURT REPORTS [2008] 13 S.C.R. A not be said that the ex-parte decree can only be set aside and not a decree passed in toto. Frorn the second pro- viso and also from the explanation, it is evident that the word "decree" is preceded by the word "ex-parte''. This would effectively mean that the Legislature while drafting s the proviso Nc.1, intentionally omitted "Px-parte" befor~ the word "decree" because they intended to mean decree in general. Therefore, a decree can be set aside as against all or any of the other defendants, regardless of the fact whether they appeared, contested or not. [Paras 14 and
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