JUDGMENT G.C. Mathur, J. - In this case, the question, which arises for consideration, is regarding the scope of the proviso to Order IX, Rule 13 of the Code of Civil Procedure. It appears that, on June 2, 1961, defendant Nos. 4 and 5 sold the house in dispute in favour of defendants Nos. 1 to 3. Subsequently, on September 5, 1963, the same house was sold by defendants Nos. 6 and 7 to the plaintiffs. On May 27, 1963, the plaintiff's filed suit No. 193 of 1963 in the court of Munsif, Kairana, against the seven defendants. Against defendants Nos. 1 to 5 they claimed the relief of possession over the house and against defendants Nos. 6 and 7 they claimed the relief, in case they were held not entitled to the relief against defendants Nos. 1 to 5, of refund of the sale consideration with interest. Both sets of defendants filed their written statements. On the date of hearing, defendants Nos. 6 and 7 were absent, but the other defendants contested the suit. By judgment and decree dated August 5, 1965, the additional Munsif, Kairana, dismissed the suit on merits against defendants 1 to 5 but decreed it ex parte against defendants Nos. 6 and 7 for recovery of Rs. 1,085. He held that defendant 4 and 5, and not defendants 6 and 7 were the owners of the house and, therefore, the sale in favour of defendants 1 to 3 was a valid sale. Subsequently, defendants Nos. 6 and 7 made an application under Order IX, Rule 13 of the Code for setting aside the ex parte decree. By order dated July 30, 1966, the Munsif not only set aside the ex parte decree against defendants 6 and 7 but also set aside the decree passed in favour of defendants Nos. 1 to 5. Against this order, the present revision has been filed. 2. Order IX, Rule 13 reads thus:-- 13. By order dated July 30, 1966, the Munsif not only set aside the ex parte decree against defendants 6 and 7 but also set aside the decree passed in favour of defendants Nos. 1 to 5. Against this order, the present revision has been filed. 2. Order IX, Rule 13 reads thus:-- 13. In any case, in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he 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 on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: 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. 3. There are three possible classes of cases in which an application under Order IX, Rule 13 may be made: (i) Where the suit has been decreed ex parte against all the defendants; (ii) Where the suit has been decreed on merits against some defendants and ex parte against the others; and (iii) where the suit has been dismissed on merits against some defendants and has been decreed ex parte against the remaining. 4. We are, in this case, concerned with a case which falls in the third class and the question is whether, in such a case, the Court has jurisdiction to set aside the decree passed in favour of some defendants on merits, While setting aside the ex parte decree passed against the other defendants. The revision came up for hearing before Verma, J. He thought that there was conflict between the decisions of two single Judges of this Court in Sardar Karam Singh v. Jai Kishan 1963 A. L. J. 472 (decided by Mithan Lal, J.) and Ram Baran Vs. Bodh Ram and Others, AIR 1934 All 1051 (decided by Kendall, J.) and has referred the case for decision by a larger Bench. 5. Ram Baran Vs. Bodh Ram and Others, AIR 1934 All 1051 (decided by Kendall, J.) and has referred the case for decision by a larger Bench. 5. Ram Baran Vs. Bodh Ram and Others, AIR 1934 All 1051 is the only case cited before us which can be said to have taken the view that, even in case; falling in class (iii) mentioned above, the Court has jurisdiction to set aside the decree not only in respect of the defendant against whom it was passed ex parte but also in respect of a defendant or defendants in whose favour the decree was passed on merits. In that case, there were four defendants and the Munsif had dismissed the suit against one defendant, who had put in appearance, and passed an ex parte decree against the remaining three. One of the defendants, against whom the decree had been passed ex parte, applied under Order IX, Rule 13 and the Munsif set aside the entire decree, including that portion which was in favour of one of the defendants, on the ground that the decree was one and indivisible. The defendant, against whom the suit had been dismissed, filed a revision before this Court and Kendall, J., relying upon the decision of Full Bench of this Court in Bhura Mal v. Har Kishen I. L. R. 24 All. 383 (F.B.). , observed: It is sufficient for the purposes of the present case to say that if the proviso to Rule 13 of Order 9, Civil P.C. can be used in the circumstances described in the case which came before the Full Bench, the Court cannot be acting irregularly in using that proviso in the present case. 6. He relied upon the following observations of Aikman, J. in the Full Bench case:-- In my opinion, the Court must he assumed to have power to set aside the whole decree, if the decree from its nature is one and indivisible, or if, in order to give to the defendants against whom an ex parte decree has to be pronounced the relief to which they are entitled, it must be set aside as a whole. 7. Kendall, J. has given no reasons of his own but has purported to apply the decision of the Full Bench. 7. Kendall, J. has given no reasons of his own but has purported to apply the decision of the Full Bench. In the first place the learned Judge appears to have been under some misapprehension in observing that the proviso to Order IX, Rule 13 was applicable in the Full Bench case, as the Full Bench case was decided under Sec. 108 of the old Code of 1882, when there was nothing corresponding to this proviso in that section. Secondly, we find that in the case before the Full Bench, the decree had been passed ex parte against all the defendants and only one of them had applied to get the decree set aside. The observations made in connection with that case can have no application to the facts of the case before Kendall, J. There is thus no basis for the decision of Kendall. J. 8. The provision corresponding to Order IX, Rule 13 in the Code of 1882 was Sec. 108, which was in these terms:-- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he 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 on for hearing the Court shall pass an order to set aside the decree upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. 9. When the present Code of 1908 was enacted, Sec. 108 was adapted with some alterations, the most important alterations being the addition of the words "as against him" after the words "setting aside the decree" and the addition of the proviso. The object of inserting the word "as against him" has been explained in the report of the Special Committee, which was appointed to consider the amendment of the Code, thus:-- The Committee have inserted the words to make it clear that a decree can only be set aside in favour of a defendant against whom the decree has been made ex parte. There is some conflict of judicial authority upon this point, and the Committee think that the matter should be set at rest in this sense. 10. There is some conflict of judicial authority upon this point, and the Committee think that the matter should be set at rest in this sense. 10. The proviso was inserted by the Select Committee which gave its reason for doing so as:-- We think it necessary to provide specially for cases in which it may not be possible to set aside the decree against the applicant only." 11. These changes clearly show that, as a general rule, the decree can be set aside only as against the person making the application under Order IX, Rule 13, C. P. C. but, in exceptional cases contemplated by the proviso, it can be set aside against the other defendants also. The rule permits only a defendant, against whom an ex parte decree has been passed, to make an application for setting it aside. In cases where the decree is of such a nature that it cannot be set aside against the defendant making the application alone, the proviso empowers the Court to set it aside against all or any of the other defendants also. In other words, if the decree is a joint and indivisible decree against several defendants and it is not possible to set it aside only in respect of the defendant or defendants making the application, then the Court may set it aside in respect of other defendants also. Clearly, the proviso will apply to the first class of cases mentioned above. We do not wish to express any opinion whether it will apply to the second class of cases. But, in our opinion it will not apply to the third class of cases, where the suit has been dismissed on merits against some defendants and has been decreed ex parte against the other defendants. In such a case, though on paper there will be one decree, in fact and substance there will be two decrees-one in favour of the defendants against whom the suit has been dismissed and the other against the defendants against whom the suit has been decreed ex parte. The decree cannot be said to be one and indivisible. The ex parte decree can be set aside without affecting the decree in favour of the other defendants. The decree cannot be said to be one and indivisible. The ex parte decree can be set aside without affecting the decree in favour of the other defendants. There can be no justification for imperilling the rights of those defendants who have acquired than under the decree in their favour, when the plaintiffs of the other defendants have not preferred any appeal against that decree. 12. We may now refer to the cases where it has been held that, in setting aside an ex parte decree against a defendant, the Court has no jurisdiction to set aside the decree passed on merits in favour of other defendants. In Ghanna Mal v. Bawa Sant Das (1913) 18 I. C. 327, the Chief Court of Punjab held that the proviso to Rule 13 or Order IX. C. P. C. does not apply to the case of a defendant, against whom the suit has been dismissed on merits, without appeal by the plaintiff. In this case, the suit had been dismissed against one defendant and decreed ex parte against another. An application to set aside the ex parte decree was rejected by the trial court. The defendant, against whom the suit had been decreed ex parte, then preferred an appeal against the order refusing to set aside the ex parte decree but took no steps to appeal against that part of the decree which dismissed the suit against the other defendant. The appellate court set aside the entire decree. In revision, it was held that the order, in so far as it set aside the decree in favour of the defendant against whom the suit had been dismissed on merits, was wrong and without jurisdiction. 13. In Shewaram Chandrika v. S. M. S. Punjab Electric Co. A. I. R. 1927 Sind 245, it was held that an ex parte decree passed against an absent defendant may be set aside only as against him but the Court cannot restore the suit as against the other defendant who was present and as regards whom the suit was dismissed by consent of the plaintiff. It was held that there was nothing in Order IX, Rule 13, C. P. C. to warrant the restoration of the suit against another defendant on the application of a defendant against whom the suit had been decreed ex parte. In Bhimrao Tanbaji v. Girdharilal Ramrakh AIR 1954 Nag. It was held that there was nothing in Order IX, Rule 13, C. P. C. to warrant the restoration of the suit against another defendant on the application of a defendant against whom the suit had been decreed ex parte. In Bhimrao Tanbaji v. Girdharilal Ramrakh AIR 1954 Nag. 125, it was laid down that the substantive provision as well as the proviso to Order IX, Rule 13, C. P. C. merely con-template the setting aside of a decree "against" a defendant; not one in favour of a defendant. It was held that where a suit has been dismissed against one of the defendants, the proviso does not empower the Court to set aside the dismissal and to hold otherwise will be doing violence to the language of the proviso. Mudholkar, J. (as he then was) observed:-- Where it necessary to pronounce on the matter I would have been inclined to hold that the expression 'the decree' in the proviso, according to the rules of construction, ought to be confined to an 'ex parte' decree to which alone the substantive provision expressly relates... . What the substantive provision as well as the proviso contemplate is the setting aside of a decree "against" a defendant, not one in favour of a defendant. 14. In Khagesh Chandra v. Chandra Kanta Barual AIR 1954 Assam 183 (F.B.), a Full Bench of the Assam High Court has taken the same view. It has held:-- The privilege given under Order 9, Rule 13 for applying for setting aside the ex parte decree is to the defendant against whom an ex parte decree has been passed. Emphasis lies on the word 'against'. This privilege can be availed of by the defendant in appropriate cases mentioned in the Rule, and if the Court is satisfied, the decree against that defendant may be set aside and the suit ordered to be re-heard. In the context, the suit means the suit in so far as it affects the liability of that particular defendant, and not the whole suit, including even such defendants in whose favour the suit may have been dismissed and their liability determined. In the context, the suit means the suit in so far as it affects the liability of that particular defendant, and not the whole suit, including even such defendants in whose favour the suit may have been dismissed and their liability determined. The rule is subject to the proviso which enlarges the power of the Court to set aside the decree even against all or any of the other defendants where the decree is of such a nature that it cannot be set aside as against the applying defendant only. But 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 re-opening the whole suit. 15. We now come to the last case which is the decision of Mithan Lal, J. in Sardar Karam Singh v. Jai Kishan. In this case, Jai Kishan brought a suit for recovery of Rs. 15,000/- against Sardar Karam Singh and the State of U.P. The suit was dismissed on merits against the State of U.P. but was decreed ex parte against Sardar Karam Singh. Sardar Karam Singh filed an application to set aside the ex parte decree but it was dismissed by the trial court. Sardar Karam Singh preferred an appeal before this Court against the order refusing to set aside the ex parte decree. Mithan Lal, J. was of the view that the application to set aside the ex parte decree should have been allowed. It was then urged before him that the whole decree of the trial court, including the decree dismissing the suit against the State of U.P. should be set aside. Mithan Lal, J was of opinion that the proviso to Rule 13 of Order IX did not permit the setting aside of a decree passed in favour of a defendant on merits, while setting aside the decree passed ex parte against another defendant. In his opinion, the provision being in the nature of an exception to the general rule under Rule 13 of Order IX, applies only to a case where the decree has been passed ex parte against several defendants but only one of them has come for setting aside that decree. In his opinion, the provision being in the nature of an exception to the general rule under Rule 13 of Order IX, applies only to a case where the decree has been passed ex parte against several defendants but only one of them has come for setting aside that decree. He was also of the view that the decree was not indivisible and, for that reason also, the proviso, was not applicable. He accordingly set aside the decree against Sardar Karam Singh but refused to set it aside in favour of the State of U.P. It may be mentioned here that the view of Mithan Lal, J. that the proviso applies only to a decree passed ex parte against several defendants, only one or some of whom have applied for setting it aside, is shared by the Full Bench of the Assam High Court in the case referred to above and by Mudholkar, J. in the case of Bhimrao Tanbaji v. Girdharilal Ramrakh AIR 1954 Nag. 125. 16. We agree with the view taken in these cases that the proviso to Order IX, Rule 13 does not empower the Court to set aside a decree dismissing the suit on merits against a defendant, on an application under Order IX, Rule 13 by another defendant against whom the decree has been passed ex parte. Further, on the facts of the case before us, it is clear that, though on paper, the decree passed by the trial court is one decree, in substance, it amount to two decrees one in favour of defendants 1 to 5 and the other against defendants Nos. 6 and 7. The reliefs, which the plaintiffs prayed for against these two sets of defendants, were separate and distinct reliefs. There can be no difficulty in setting aside the ex parte decree against defendants Nos. 6 and 7 and leaving the decree passed in favour of defendants Nos. 1 to 5 intact. It may be that, if the decree in favour of defendants 1 to 5 remains intact, defendants 6 and 7 may find some difficultly in establishing their case when the suit is reheard, but that, in our opinion, is not a factor which can be taken into account in determining whether the decree can or cannot be set aside against defendants Nos. 6 and 7 only, against whom it was passed ex parte. 6 and 7 only, against whom it was passed ex parte. The decree in favour of defendants 1 to 5 cannot be set aside, except in an appeal against that decree. This result cannot be achieved by setting aside the entire decree on an application of defendants 6 and 7 for setting aside the ex parte decree against them. For these reasons, we hold that the Additional Munsif, Kairana, had no jurisdiction to set aside the decree in favour of defendants 1 to 5. Accordingly, we allow this revision and set aside the order of the Additional Munsif, Kairana, in so far as it sets aside the decree in favour of defendants Nos. 1 to 5. The decree of the trial court is set aside only in so far as it decree the suit ex parte against defendants. Nos. 6 and 7. The decree in favour of defendants 1 to 5 will remain intact. There will be no order as to costs.