KANTILAL KHODABHAI PATEL Vs. CHIBA BAVA BHANDARI

JUDGEMENT

(1.) THIS application arises out of ejectment suit filed by the respondent against the petitioner, who was his tenant. The suit was decreed ex parte. Against this judgment the petitioner filed an appeal to the District Court on December 16, 1961 and also made aside the ex parte decree two days later on the 18th. The appeal in the District Court was summarily rejected under O. 41, R. 11 on July 6, 1962. Thereafter the application for setting aside the ex parte decree was heard by the trial Court who allowed it on July 16, 1962, without the knowledge that the petitioner's appeal was summarily dismissed. The plaintiff came to know about the dismissal of the appeal and he then made an application under S. 151 of the C. P. Code for setting aside the order on the ground that the petitioner had concealed material facts from the trial Court when he obtained the order setting aside the ex parte decree. The trial Court set aside its order on the ground that fraud was played on the Court in obtaining the orders by the petitioner. The petitioner's appeal against this judgment has failed and the petitioner now challenges this decision.

(2.) THE question is whether the application for setting aside of an ex parte decree can be entertained by the trial Court after an appeal against the ex parte decree is dismissed by the appellate Court. There seems to be some difference of opinion on the question, but majority of High Courts are of the view, that as the decree of the trial Court merges with the decree of dismissal of the appeal, the trial Court can have no jurisdiction to deal with the decree. This view has been taken by the High Court of Calcutta in Bhonai v. Taraknath, 12 Cal LJ 53; Kalimuddin v. Esabakuddin, ILR 51 Cal 715; (AIR 1924 Cal 8300, by the Allahabad High Court in Mathura v Ram Charan, ILR 37 All 208: (AIR 1915 All 2) and Girdharilal v. Deputy Commissioner, ILR 4 Luck 201; (AIR 1929 Oudh 35 (1)); by the Madhya Bharat High Court in Balbhim Rao v. Alkh Murarilal, ILR (1953) Madh B 62; (AIR 1954 Madh B 4) and by the Kerala High Court in P. Aliamma v. E. Ouseph, 1954 Ker LT 322. Sir Dinshaw Mulla at page 652 in his C. P. Code state that Madras and Lahore High Courts have taken a different view, in Subramania v. Varadarajulu, AIR 1927 Mad 722 (2 ).

(3.) MR. Shah has very emphatically urged that there can be no question of merger where an appeal is dismissed summarily and in support he had relied upon the decision of the Supreme Court in the State of Uttar Pradesh v. Mohammad Nooh, 1958 S C R 595; (AIR 1958 SC 86 ). The relevant observations are at p. 611. Their Lordships were considering the question of retrospective operation of Articles 226 and 227 of the Constitution the question being whether the High Court had jurisdiction to interfere with the order of dismissal of a Government servant made prior to January 26, 1950. It was contended before the Supreme Court, that the order of dismissal dated April 20, 1948, merged in the order in Appeal dated Mary 7, 1949, and the two orders merged in the order in the revision to the Government dated April, 22, 1950. Their Lordships rejected this contention holding that there was nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. On this ground the jurisdiction of the High Court was denied. It is true that in passing their Lordships observed;