This revision petition under Section 115 of the Civil Procedure Code and Para 34 of Tripura (Courts) Order, 1950, is directed against the order dated 23-11-1967 of the Additional Subordinate Judge by which he set aside the ex parte decree dated 9-9-1965 in Title Suit No. 7 of 1964 against a number of defendants including Jogesh Chandra Sukla Das, the respondent herein. 2. There were as many as 11 defendants in the suit. Ex parte proceedings were declared against all of them as none of them put in appearance despite, as the trial Court once held, personal service. Defendant No. 1 Sridam Banik subsequently put in appearance before the ex parte evidence was recorded and expressed his intention to defend the suit Ultimately, however, he and the plaintiff entered into a compromise. On the basis of that compromise and ex parte evidence recorded against others the suit was decreed against all on 9-9-1965, the decree being ex parte against all excepting Sridam Banik. Thereafter, Jogesh Chandra Sukla Das aforementioned moved the Court under Order 9, Rule 13, of the Code for setting aside the ex parte decree on the allegations that he had never been served and that the report that he had been personally served was fake and fictitious. The plaintiff Jadav Chandra Banik joined issue with him on the question of personal service. The Court, however, accepted the contention of the defendant and by its order dated 23-11-1967 set aside the ex parte decree in its entirety on payment of Rs. 30 as costs by Jogesh Chandra Sukla Das within 15 days. 3. Aggrieved by the order setting aside the ex parte decree, the plaintiff Jadav Chandra Banik has come up in revision to this Court. The revision is opposed by Jogesh Chandra Sukla Das. 4. Shri A. K. Shyam Choudhury, representing the petitioner, did not contest, and I think very fairly, the findings of the Court that Jogesh Chandra Sukla Das had not been personally served and that as such it was not possible to maintain the ex parte decree against him. However, he raised another two issues, they being (1) that the decree having been set aside on the condition that the costs of Rs.
However, he raised another two issues, they being (1) that the decree having been set aside on the condition that the costs of Rs. 30 shall be deposited within 15 days of 23-11-1967 and that having not been done the application for setting aside the ex parte decree must be taken to have failed, and (2) that the trial Court went wrong in setting aside the decree against the defendants other than Jogesh Chandra Sukla Das though they had never approached the Court with such a prayer, Shri H. N. Kar, appearing for the respondent, submitted, on the other hand, that there was no merit in either of the two points raised by Shri Choudhury. I think that stand is well founded. 5. The order setting aside the decree was made on 23-11-1967. It was mentioned therein that if the conditional costs of Rs. 30/- were not paid within 15 days of 23-11-1967, the application made under Order 9, Rule 13, Civil Procedure Code shall stand rejected. It is not in dispute that the costs were deposited on 8-12-1967. If 15 days are counted from the day following the date on which order was passed, viz. 23-11-1967, then obviously the costs were deposited within 15 days. Shri Choudhury, however, contended that 15 days should be counted including the date on which the order was passed. When asked to cite any authority in support of that contention, Shri Choudhury found himself unequal to the task. I have no doubt in my [mind that in terms of the order dated [23-11-1967 the costs of Rs. 30 could be deposited on 8-12-1967. As such I repel the first contention raised by Shri Choudhury. 6. The proviso to Rule 13 of Order 9 states that where the decree is of such a nature that it cannot be set aside only as against the defendant who moved an application, it may be set aside as against all or any of the other defendants also. Therefore, the fate of the point canvassed by Shri Choudhury would depend upon the nature of the decree passed by the trial Court. That decree was passed, it is agreed, in terms of the prayer made in the plaint. That prayer was for a decree for khas possession on declaration of plaintiff's jote right in the land in dispute besides a decree for Rs.
That decree was passed, it is agreed, in terms of the prayer made in the plaint. That prayer was for a decree for khas possession on declaration of plaintiff's jote right in the land in dispute besides a decree for Rs. 300 representing the compensation for the crops relating to the year 1370 B. S. and a further decree for mesne profits upto the date of delivery of possession to the plaintiff. The suit was founded on the allegations that the plaintiff was the jotedar of the land in dispute and the defendants had forcibly trespassed on to it. It was not the case of the plaintiff that the various defendants were in occupation of any specified areas out of the land in dispute. At any rate, the decree actually passed against the defendants did not specify that the plaintiff shall be entitled to secure possession of particular parcels out of the land in dispute from the individual defendants. It, therefore, follows that the trial Court had no alternative but to set aside the decree as a whole while accepting the application of Jogesh Chandra Sukla Das for otherwise there was risk of his passing mutually irreconcilable decrees. I may appropriately add that it is the case of the present respondent that the whole of the land in dispute is in his possession. 7. Shri Choudhury urged, on the authority of the decision in Hiralal v. Sitaram, AIR 1952 Bom 446 , that it was open to the trial Court to set aside the ex parte decree only against Jogesh Chandra Sukla Das. Nothing said in the report supports that contention. It was held that the right to set aside the ex parte decree is conferred expressly upon the party who applies for that relief, that as against the parties who have not applied within time for setting aside the ex parte decree against them, the plaintiff obtains a valuable right by securing a decree against them, and that the valuable right can only be defeated if the Court itself finds a difficulty in setting aside the ex parte decree only against the defendant who has applied for it. The emphasis laid by the Bombay High Court was on the fact that it is the privilege of the Court alone, and not the right of the non-applying defendant, to set aside the decree against the latter.
The emphasis laid by the Bombay High Court was on the fact that it is the privilege of the Court alone, and not the right of the non-applying defendant, to set aside the decree against the latter. This is exactly what has happened in the instant case. The other defendants did not even put in appearance before the Court when the application made by Jogesh Chandra Sukla Das for setting aside the ex parte decree came up for hearing. The Court set aside the decree in its entirety on its own for there was no other practical course to follow. If Jogesh Chandra Sukla Das succeeds in his defence that he is in possession of the entire land in dispute and he has the right to hold that possession, then there would be two conflicting decrees respecting that land, one entitling the plaintiff to secure possession and the other standing in his way to do so. The Bombay authority does not interdict the course adopted by the trial Court and so it is of no help to the proposition canvassed by Shri Choudhury. 8. As a result, the revision petition fails and is hereby dismissed. However, taking into account all the relevant factors I have decided to leave the parties to bear their own costs and order accordingly. Revision dismissed.