JUDGMENT
1. This is an order, in our view, entirely without jurisdiction, an order which no Judge ought ever to make, and which there is nothing in the Code to justify. A decree was passed against a defendant, the result of which was that a house, which he says (although it is not yet proved) is his in severalty, was to be partitioned. He admits that he was served and had notice of the suit. It is true he was ill, but he has been vary candid in admitting that he came to the Court and the truth of the matter is that he did not realise that this house was included in the suit, and he seems to have captivated the heart of the Munsif and induced him to make an order setting aside the decree. The only justification for such an order is Order IX, Rule 13, under which the applicant must satisfy the Court (1) that the summons was not duly served, or (2) that he was prevented from sufficient cause from appearing. It is admitted that neither of these conditions occurred. The rule does not apply and the Munsif had no jurisdiction of any sort or kind to pass this order. He has done his best to make it equitable by compelling the defendant to pay costs, but that does not enable a Judge to set aside a decree passed by himself against a party, who had full knowledge and notice of the suit. We are, however, unable to interfere. The case is governed by the decision of a Divisional Bench reported as Nand Ram v. Bhopal Singh 16 Ind. Cas. 1 : 34 A. 592 : 10 A.L.J. 130, which has by implication been approved by a Full Bench in the recent case of Buddhoo Lal v. Mewa Ram 63 Ind. Cas. 15 : 19 A. L.J. 558 : 43 A. 564 (F.B.) and which is a decision exactly on the point. It was held that an order setting aside an ex parte decree could not be entertained by the High Court in revision, for the simple reason that the validity of such an order could be attacked under Section 105 of the Code in an appeal from the final decree passed in the suit. The respondents, the defendants in the suit, who have objected to this application, have based their objection on the ground that the applicant or plaintiff can take this objection, namely, that the Munsif had no jurisdiction to pass the order, in the appeal from the final decree. That being so, he will be estopped by this order which he has obtained in his favour, from objecting hereafter to the point being raised in the appeal from the final decree.
2. This application must be dismissed with costs, including in this Court fees on the higher scale.