' IFTIKHAR MUHAMMAD CHAUDHRY, C J.---This petition for leave to appeal calls in question the judgment dated 25-6-2008 of the Peshawar High Court, Peshawar in Civil Revision No,176 of 2008.
2. Precisely stating the facts and circumstances of the case are that the predecessor-in-interest of respondent Mst. Bano Begum instituted a suit for declaration to the effect that she was the owner in possession of the property measuring 6 Kanals 14-1/2 Marlas out of 11 Kanals and 5-1/2 Marlas and the mutation No,245 attested on 17-4-1947 in favour of Habibur Rehman, the predecessor in interest of defendants Nos.1 to 11 was ineffective on her rights. The suit was decreed ex parte in favour of the plaintiff on 26-7-2006. Petitioner Mst. Shoukat Ara filed an application for setting aside ex parte decree but could not make out a case before the trial Court as her application was dismissed on 20-2-2007. The appeal preferred against this order also failed before the Additional District Judge, Peshawar, who dismissed the same vide order dated 9-2-2008. Subsequent thereto the revision noted above was filed which also dismissed.
3. We have heard the parties' learned counsel and also requisitioned the record to examine whether service upon Mst. Shoukat Ara was duly effected or not. The learned counsel for the petitioner and the respondents during hearing of the petition entered into the compromise, the contents whereof reads as under:-- "We agree that the application of Mst. Shaukat Ara alone for setting aside ex parte decree may be accepted and for the remaining defendants ex parte decree may remain intact and the ex parte decree to the share of Mst. Shaukat Ara in disputed property may be set aside and the case may be remanded back to trial Court to decide on merits after recording the evidence by giving opportunity to both the parties."
4. The learned counsel for both the sides in terms of above compromise have prayed for setting aside the ex parte decree dated 26-7-2006 to the extent of the petitioner and remanding the case to the trial Court for fresh decision on merits only to her extent, while keeping intact the decree against other defendants who had not filed proceedings for setting aside the same. The compromise so arrived at between the parties has been examined. It is to be noted that the terms of the compromise speak for setting aside the ex parte decree partially to the extent of the petitioner. In this behalf, we have examined the provisions of Order IX, Rule 13, C.P.C. Which deals in respect of setting aside an, ex parte decree whereas; the question as to whether in the law, as in the instant case, the ex parte decree shall be set aside as a whole or partially to the extent of the petitioner. We are of the considered opinion that in such circumstances, the relief can only be extended to a party who had approached the Court for setting aside the ex parte decree on available grounds under the law, including the one that the applicant seeking setting aside ex parte decree was not heard or allowed to represent himself/herself before the Court. In this behalf, we are fortified with the A judgment, cited by Mian Muhammad Younis, ASC i,e, Hiralal Moraka v.
Sitaram Manekchand (AIR 1952 Bombay 446). The relevant para therefrom is reproduced herein below:-- "4. Mr. Bhaba asked us to consider what would happen after the decree is set aside and the Court dismisses the suit against defendant No, 1 . In our opinion, that is not a consideration that can weigh with the Court when it considers the proviso to O.IX, R.13. The right to set aside the ex parte decree is conferred expressly only upon the party who applies to set aside the ex parte decree. As against the parties who have not applied, the plaintiff has obtained a valuable right, he has obtained a decree against those defendants, and that valuable right can only be defeated provided the Court itself finds a difficulty in setting aside the ex parte decree only against the defendant who has applied to do so. But there is no right whatever in the party who has not applied to set aside the ex parte decree to have that decree set aside. Mr. Bhaba's client had the right to apply set aside ex parte. He did not choose to exercise that right; he submitted to the decree. It is not therefore for him to appeal against any injustice that might be caused by reason of the fact that a suit against defendant. No,1 may be dismissed on the same cause of action. He himself has no right conferred upon him by the Code. It is only difficulty that the Court might experience which has led the Legislature to enact the proviso."
5. Thus, the compromise reproduced hereinabove is accepted. The ex-parte decree dated 26-7- 2006 only to the extent of petitioner is set aside. Her case is remanded to the Civil Judge, Peshawar for decision afresh after granting opportunity of defending the suit in accordance with the law. As a matter is lingering on since long, therefore, the trial Court is directed to dispose of the case expeditiously as far as possible within a period of three months after receipt hereof.
6. For the foregoing reasons, this petition is converted into appeal and disposed of accordingly, leaving the parties to bear their own costs.