JUDGMENT Mithan Lal , J. - This first appeal filed by Sardar Karam Singh one of the defendants, is directed against the order refusing to set aside an ex parte decree passed by the Additional Civil Judge Muzaffarnagar. Briefly stated the facts are that the opposite party Jai Kishan brought a suit for recovery of Rs. 15,000/- as damages against the present appellant, the State of U.P. and one other Sardar Arjun Singh who has since died. The suit was instituted in forma pauperis and the notice of these proceedings was personally served upon the present appellant but he did not contest those proceedings and wrote at the back of the notice that there was a compromise between the parties. The State Government, I am told, contested the pauper proceedings but ultimately the plaint was registered in forma pauperis. 2. After the registration of the plaint summonses were issued to the present appellant to the same address on which he had been served with the notice of the pauper proceedings but the notices were every time returned unserved whether sent in the ordinary course or through registered post. Ultimately service was effected by the publication in a weekly paper of Meerut named `Hamara Desh'. In spite of the publication of the notice the present appellant did not put in appearance and the case proceeded ex parte so far as he went. The State Government contested the suit. The suit was ultimately dismissed against the State Government but it was decreed ex parte against the present appellant and the judgment was pronounced on 28-2-1962. An application for setting aside the ex parte decree on behalf of the present appellant was made on 3-5-1962 and the main ground was that the appellant had no knowledge of the suit and the summonses were not duly served upon him. An affidavit in support of the application was filed. The plaintiff-respondent contested this application and he also filed a counter affidavit stating that the defendant had knowledge of the suit and that his absence was wilful. The court below has accepted the plain tiff's contention and has dismissed the restoration application. So this apepeal by the defendant-appellant. 3. An affidavit in support of the application was filed. The plaintiff-respondent contested this application and he also filed a counter affidavit stating that the defendant had knowledge of the suit and that his absence was wilful. The court below has accepted the plain tiff's contention and has dismissed the restoration application. So this apepeal by the defendant-appellant. 3. Sri Shanti Bhushan, learned Advocate for the appellant, has con-tended that summonses were not duly served upon defendant-appellant and he had no notice of the date of the suit, that he came to know of the decree on 21-4-1962 at Baghpat Bus Stand, that thereafter an inspection of the Court record was made and the application was presented. It was within time from the date of the knowledge and the court below was wrong in holding that the appellant had knowledge of the suit. It is also his contention that the proviso to Order 9 rule 13 did not apply and the court below was wrong in dismissing the application. Sri A.B. Saran, learned counsel for the respondent, has on the other hand, contended that the absence of the defendant-appellant was deliberate and that the summonses in the case were issued to the same address as notice of the pauper proceedings and the very fact, that the notices of pauper proceedings were personally served but not the summonses coupled with the further fact that the defendant had written on the notice of the pauper proceedings that there was a compromise between the parties goes to show that defendant did not want to contest the suit and deliberately absented himself and so there was no cause for setting aside the decree. It is also his contention that if the decree was to be set aside it should be set aside against all the defendants because the decree is one and indivisible. The learned standing counsel has contended on behalf of the State that order 9 rule 13 does not apply to the decrees passed after contest and in this case the suit having been dismissed on merit against the State and the plaintiff-respondent having also filed an appeal in the High Court the decree against the State cannot be set aside. Proviso 2 to order 9 Rule 13 is said to have a limited scope. Proviso 2 to order 9 Rule 13 is said to have a limited scope. He has further submitted that according to the allegations made in the plaint and the relief claimed, the plaintiff sought a decree against the State in the first instance or against the defendant-appellant in the alternative and consequently there is no question of the decree being one and indivisible nor does the principle of conflicting decrees apply to such a case. 4. The primary question in the case is whether the judgment of the lower court on the question of defendant's knowledge or on the question of defendant's wilful absence is erroneous. According to the admitted facts of the case the defendant-appellant was not personally served. The service which was effected on him was done by publication in a weekly of Meerut. The notice of the pauper proceedings was personally served at the back of which the defendant-appellant wrote that there was a compromise between the parties. It is outside the scope of these proceedings to make any observation about any compromise between the parties but having regard to the conduct of the parties, i.e. the absence of the defendant in the case and the allegations in the plaint claiming a decree primarily against the State Government cannot be ignored. The plaintiff claimed a decree for Rs. 15,000 and it cannot be expected that a truck driver or owner would allow a decree for such a sum to be passed against him and would not put in appearance in the case if he knew about the case. It is true that the appellant had knowledge of the pauper proceedings but those proceedings cannot be taken to indicate any knowledge about the suit. The summons of the case had to be served properly and even though the service was effected by publication which is sufficient in law, no knowledge can be imputed to the appellant from these facts. The only other point is whether the mode of knowledge given by the appellant could or could not be accepted. The trial court thought that it was a made up story but sometimes facts are stranger than fiction and if the conduct of the parties shows that the appellant could not have had knowledge, the court will be unjustified in rejecting the reasons for that knowledge. The trial court thought that it was a made up story but sometimes facts are stranger than fiction and if the conduct of the parties shows that the appellant could not have had knowledge, the court will be unjustified in rejecting the reasons for that knowledge. It may be that the plaintiff-respondent made an attempt for attachment and also made an application to the Hon'ble Administrative Judge but that will not impute any knowledge of the decree. In fact the application to the Administrative Judge was made on 11-5-1962 a few days after the filing of the present application and another Amin was appointed thereafter. In this case the parties did not produce any evidence. The only evidence consisted of affidavits and counter-affidavits. Only those allegations in affidavit or counter-affidavit could be accepted which would be consistent with the ordinary conduct of a human life and the circumstances of the case. The allegations made on behalf of the appellant appear to be more consistent and so they should have been accepted instead of being rejected. To my mind the learned Judge was not right in rejecting the application for restoration. The appeal must, therefore, succeed. 5. Another question which arises for consideration is whether the decree, as a whole, should be set aside both against the appellant and the State Government or it should be set aside only as against the appellant. It has already been stated that the plaintiff's suit has been dismissed after contest against the State Government and an appeal has been instituted in this court. It was sought to be instituted in forma pauperis but the pauper application has been rejected and the plaintiff-respondent, has been given time to pay the court fee. The question is whether the decree of dis-missal of the suit against the State Government should or should not be set aside. 6. Under Order 9, R. 13 a decree which has been passed ex parte against the defendant can be set aside if such a defendant satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called an for hearing. 6. Under Order 9, R. 13 a decree which has been passed ex parte against the defendant can be set aside if such a defendant satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called an for hearing. There is a proviso to this rule which lays down that where the decree is of such a nature that it cannot be set aside against such defendant only it may be set aside as against all or any of the other defendants also. The question is whether this proviso applies to a decree which has been passed on merits or whether in a case for damages where the plaintiff has claimed damages in the alternative against two parties the decree is of such a nature as should be set aside. So far as the first proposition goes the learned counsel for the State has contended that the scope of the proviso is limited and the proviso cannot be made applicable to a decree passed after contest because it is a sort of exception to the general rule given in R. 13. 11 R. 13 applies to only setting aside of the exparte decree the proviso cannot apply to a contested decree though passed in the same suit. For this purpose the learned counsel has relied upon the Full Bench case Khagesh Chandra v. Chandra Kanta Barua, A.I.R. 1954 Ass. 183. According to the Full Bench of that Court it has been held that the rule or the proviso does not confer any jurisdiction upon the Court to reverse a decree dismissing the suit of the plaintiff as against some of the defendants imperilling thereby the interest of those defendants also by reopening the whole suit. In that case a Single Judge authority of this Court Ram Baran v. Bodh Ram, AIR 1934 Allahabad 1051 was also considered. That authority has been relied by the learned counsel for the respondent as also two other cases which will be referred to shortly. 7. The proviso to R. 13 appears to have a limited scope. In that case a Single Judge authority of this Court Ram Baran v. Bodh Ram, AIR 1934 Allahabad 1051 was also considered. That authority has been relied by the learned counsel for the respondent as also two other cases which will be referred to shortly. 7. The proviso to R. 13 appears to have a limited scope. It being in the nature of an exception to the general rule should not be deemed to apply to a decree which has been passed after contest but only to a decree which has been passed ex-parte against more than one defendant, i.e. the proviso will apply to a case where a decree has been passed ex-parte against several defendants but only one of them has come for setting aside that decree. Such a decree can be set aside under the scope of the proviso provided it is of such a nature that it cannot be set aside as against such defendant only. In the case of Ram Baran the Single Judge of this Court relying upon an earlier Full Bench case Bhura Mal v. Har Kishan Das, I.L.R. 24 All. 383 came to the conclusion that the scope of rule 13 was wider and a decree can be set aside even if it is passed against some defendants after contest and exparte against others if it was one of the nature of being indivisible. This view has not been accepted by the Assam High Court. The learned Judge placed reliance on Full Bench authority of Bhura Mal's case but in the Full Bench case the decree was passed ex-parte against all the defendants and the Full Bench case does net lay down any proposition of law warranting the view that even a contested decree passed against some of the defendants could be set aside on the motion of a defendant against whom an ex-parte decree was passed. The learned counsel for the respondent also made a reference to certain observations of the Privy Council made in the case of Ashfaq Husain v. Gauri Sahai, I.L.R. 33 All. 264 at p. 270 = 8 A.L.J. 332 (339) (P.C.) and contended that the Rule 13 had a wider scope and even a contested decree could be set aside. The learned counsel for the respondent also made a reference to certain observations of the Privy Council made in the case of Ashfaq Husain v. Gauri Sahai, I.L.R. 33 All. 264 at p. 270 = 8 A.L.J. 332 (339) (P.C.) and contended that the Rule 13 had a wider scope and even a contested decree could be set aside. It is true that some general observations have been made by the Privy Council by stating "It might have been more in accordance with strict procedure if the Court had set aside the whole judgment and had proceeded to retry the case as against all the defendants," but this observation was made by the Privy Council casually because the decree which was set aside was set aside only against that defendant who had been absent and not as a whole. The observation of the Privy Council was not at all necessary for the decision of the case and with the greatest respect I may state that the question about the scope of rule 13 of Or. 9 was not before the Privy Council nor any decision was given on that question. So far as the view of the Single Judge in the case of Ram Baran, the Munsif had already set aside the entire decree on a restoration application because in that case the decree was indivisible. In the present case even though my view is that the scope of the proviso to Or. 9, R. 13 is limited yet the material fact being that the decree is not indivisible the proviso will have no application. According to the plaintiffs own allegations made in the plaint, the plaintiff sought a decree against the State Government or in the alternative against the defendant-appellant. It, was the last alternative that the decree was sought against both. The suit was for damages in tort and the suit having been dismissed against the State Government on merit the decree cannot be said to be of an indivisible nature. While setting aside the decree against the present appellant the decree against the State Government cannot be set aside. 8. For all these reasons the appeal must succeed. The appeal is allowed. The order of the lower court refusing to set aside an ex-parte decree against the appellant is reversed. While setting aside the decree against the present appellant the decree against the State Government cannot be set aside. 8. For all these reasons the appeal must succeed. The appeal is allowed. The order of the lower court refusing to set aside an ex-parte decree against the appellant is reversed. The ex-parte decree against the present appellant is set aside and the case is remanded to the lower court to readmit the suit and proceed to decide it on merit as against the present appellant only. The judgment against the State Government shall stand. No order is made as to costs.