PHILIPPOSE ALIAMMA Vs. EAPEN OUSEPH

JUDGEMENT

(1.) THE question for decision in this civil revision petition is whether after a decree has been confirmed by the appellate court, the defendant, who was ex-parte in the trial court, can have the ex-parte decree set aside by the trial court, or whether he should move the appellate court for setting aside the decree. THE decision of the courts below on this question went against the petitioner who was the first defendant in the trial court. THE uniform course of decisions in the erstwhile High Courts of travancore and Cochin is to the effect that the defendant must move the appellant court in the matter and cannot have the ex parte decree set aside by the trial court. In Mulla's civil Procedure Code, 1953 Edition, it is stated at page 652. "the High Courts of Calcutta, Allahabad and the Chief Court of Oudh have held that where an appeal is preferred from an ex parte decree and the decree is confirmed or otherwise disposed of in appeal under 0. XLI, R. 32, the court which passes the ex-parte decree has no longer any power to entertain an application to set it aside even if the application was made before the appeal was filed. This is because the decree of the lower appellate court is merged in that of the appellate court. " THE decisions of the High Courts of calcutta, Allahabad and the Chief Court of Oudh on the question are also cited in Mulla's Book at page 62. No doubt, the Madras and Lahore Courts have held that the Court passed the ex-parte decree has jurisdiction to entertain an application to set it aside even after an appeal therefrom has been dismissed. Having regard to the uniform course of decisions in the Travancore and Cochin High Courts I respectfully prefer to follow the precedents of those courts, which are also supported by the decisions of the High Court of Calcutta and Allahabad and the chief Court of Oudh, in preference to the view taken by the Madras and Lahore high Courts.

(2.) THE orders of the Courts below are therefore confirmed and this civil revision petition is dismissed with costs. Dismissed.