JUDGMENT 1. This miscellaneous appeal under Order 43 rule 1 of CPC has been filed against the order dated 26.9.2018 passed by 6th Additional District Judge, Guna in MJC No. 20/18, by which the application filed by the appellant under Order 9 rule 13 of CPC has been dismissed. 2. The necessary facts for the disposal of the present appeal in short are that the plaintiffs/respondents No. 1 to 4 had filed a suit for declaration that the sale deeds executed in favour of the appellant, Sher Singh, Vijay Laxmi Tripathi, Babulal are null and void because the plaintiffs have half share in the property in dispute. It appears that the appellant did not appear before the trial Court, accordingly, he was proceeded ex parte and an ex parte decree was passed thereby setting aside the sale deed executed in his favour and it was held that the plaintiffs are entitled to get the property partitioned. The appellant as well as Vijay Laxmi Tripathi, who too was proceeded ex parte, had filed two different applications under Order 9 rule 13 of CPC. The application filed by Vijay Laxmi Tripathi was allowed by the Court below by order dated 26.9.2018 in MJC No. 36/2018 and the judgment and decree passed against Vijay Laxmi Tripathi was set aside. While setting aside the ex parte decree, the following observations were made by the trial Court: ^^19- flfoy ÁfØ;k lafgrk ds vkns'k 9 fu;e 13 ds ÁFke ijarqd ds vuqlkj ;fn fMØh dh Á—fr bl Ádkj gS fd og ,dek= ,sls Áfroknh ds fo#) vikLr ugha dh tk ldrh gks rks fMØh leLr Áfroknhx.k ds fo#) vikLr dh tk ldsxhA 20- okn esa e`r O;fDr dks i{kdkj cuk;k x;k gS ,oa mlds i'pkr~ ;g ys[k djds fd e`r O;fDr ckcwyky f=ikBh dk uke fMyhV fd;k x;k fd ckcwyky ds dksbZ fof/kd okfjl ugha gSA tcfd vkosndx.k Á/kqEu] ohjsUæ ,oa v'kksd us Lo;a e`rd ckcwyky dk iq= gksuk crk;k gSA vukosnd ds }kjk bl rF; dks dksbZ pqukSrh Hkh ugha nh xbZ gSA fu.kZ; ,oa fMØh ds }kjk o"kZ 1983 ls 1985 ,oa 1987 dks fu"ikfnr foØ;i= fujLr fd, x, gSaA fujLr fd, tkus dk vk/kkj leku gSA bl dkj.k fMØh dh Á—fr bl Ádkj dh gS fd mls leLr Áfroknhx.k ds fo#) vikLr gksuk pkfg,A^^ 3. So far as the application filed by the appellant under Order 9 rule 13 of CPC is concerned, the same was dismissed by the Court below on the same day by order dated 26.9.2018 passed in MJC No. 20/2018. It was the case of the appellant that although the Process Server has mentioned that the notice was served on the son of the appellant, but at the same time, the Process Server had appended a note that the notice has been served personally on the appellant. Son of the appellant had also entered in the witness box and has specifically stated that no notice was served on him. It is also the case of the appellant that he had already changed the address about 20 years back and he was not residing at the given address. It is further submitted by the counsel for the appellant that plaintiffs had filed a Civil Revision No. 678/2018 thereby challenging the order dated 26.9.2018 passed by 6th Additional District Judge, Guna in MJC No. 36/2018 (19/18), by which the application filed by Vijay Laxmi Tripathi and LRs of Babulal Tripathi namely Pradumn Kumar Tripathi, Veerendra Kumar Tripathi and Ashok Tripathi was allowed. It was one of the contentions of the plaintiffs in the said revision that while allowing the application filed by Vijay Laxmi Tripathi and others, the trial Court should not have set aside the entire judgment and decree passed against all the defendants because the decree was separable. This Court by order dated 24.10.2018 has dismissed the revision filed by the plaintiffs by holding that once the plaintiffs themselves had filed a single suit challenging the various sale deeds executed in favour of the different defendants on the solitary ground that the plaintiffs have half share in the property in dispute, then the decree passed by the Court below was inseparable. It is further submitted that in the present case, the plaintiffs have failed to prove that the appellant was duly served. 4. Per contra, it is submitted by the counsel for the respondents that the Court below has rejected the application filed by the appellant under Order 9 rule 13 of CPC by giving cogent reasons. 5. Heard the learned counsel for the parties. 6. 4. Per contra, it is submitted by the counsel for the respondents that the Court below has rejected the application filed by the appellant under Order 9 rule 13 of CPC by giving cogent reasons. 5. Heard the learned counsel for the parties. 6. The trial Court while deciding the application filed by Vijay Laxmi Tripathi as well as the LRs of Babulal Tripathi, had already come to a conclusion that the decree is inseparable, therefore, it has to be set aside in its entirety. It is the case of the plaintiffs that they have a share in the property in dispute and they are entitled for the same after getting the property partitioned. The application filed by the codefendant under Order 9 rule 13 of CPC has already been allowed. Son of the appellant has entered in the witness box and has specifically stated that no notice was served on him as well as the Process Server has not made an endorsement that he has served notices on the son of the appellant, but he has made an incorrect endorsement that he has served the notice personally on the appellant, therefore, this Court is of the considered opinion that as the decree which was passed by the Court below was inseparable for the simple reason that although different sale deeds might have been executed in favour of different persons, but the reason for declaring the said sale deeds as null and void was same. Accordingly, the Court below has committed a material illegality by rejecting the application filed by the appellant under Order 9 rule 13 of CPC. 7. Resultantly, the order dated 26.9.2018 passed by 6th Additional District Judge, Guna in MJC No. 20/18 is hereby set aside. The application filed by the appellant under Order 9 rule 13 of CPC is hereby allowed. The ex-parte judgment and decree passed against the appellant is hereby set aside. 8. This miscellaneous appeal succeeds and is hereby allowed.