BALBHIM RAO BALASAHIB Vs. ALKH MURARILAL

JUDGEMENT

(1.) THE only point that arises for determination in this petition is whether after an appeal against an ex parte decree has been dismissed, it is open to the trial court to pass an order on a petition to set aside the ex parte decree filed 1 before the appeal was heard. In this case an ex parte decree was passed against the non -applicant on 26 -10 -1950. He then applied on 6 -11 -1950 for setting aside the ex parte decree. While this application was pending, the Plaintiff -applicant filed an appeal before the Additional District Judge against a portion of the decree of the trial court, rejecting the Plaintiff's claim in so far as it concerned the Plaintiff's right to receive rent at an enhanced rate. In the Plaintiff's appeal the Defendant was made a party and the said appeal was dismissed by the Additional District Judge Gwalior on 26 -3 -1951 after hearing both the parties.

(2.) MR . Murlidhar Gupta, learned Counsel for the applicant, contended that as the decision of the trial Court became merged in that passed by the appellate court in the Plaintiff applicant's appeal, the court of first instance had no jurisdiction to dispose of the application to set, aside the decree. He relied on - 'Vatoomal v. Godhumal', AIR 1948 Sind 10 (C). In reply, the non -applicant placed reliance on the decision of the Madras High Court in - ' : AIR 1927 Mad 722 (2) (B)'. The point raised by this petition is interesting. But it is covered by several decisions of the various High Courts. Quite apart from these authorities, it appears to me that if the principle that an appeal is but a continuation of a suit and that when an appeal is preferred from a decree of a trial Court, the decree passed in the appeal after hearing the parties, is the final decree in the suit, whether the decree be one confirming, varying or reversing the decree of the court of first instance, is accepted -as it must be -then it would logically follow that the trial court which passed the ex parte decree has no longer any powers dispose of an application to set aside the decree even if the application was made before the appeal was filed. The merger of the decree of the lower court in that of the appellate court is, in no way, affected by the fact that the appeal is by the Plaintiff or by the Defendant or by the fact that the appeal is against a portion of the decree only. As pointed out by Bhashyam Ayyangar J. in - 'Kristnama Chariar v. Mangammal', AIR 26 Mad 91 at p. 96 (FB) (D):

(3.) THE view I have taken is supported by the decisions reported by 'Mathura Prasad v. Ram Charan Lal', AIR 1915 All 2 (E); 'Mt. Ayodhya Kuar v, Durga Prasad', AIR 1923 Pat 331 (F); 'Girdhari Lal v. Deputy Commr. Gonda', AIR 1929 Oudh 35 (1) (G); 'Monomohan Kundu v. Nripendra Nath' : AIR 1937 Cal 548 (H); - 'Kikabhai v. Mt. Safia Bi' : AIR 1937 Nag 381 (I);, AIR 1948 Sind 10 (C) and also by the decisions referred to in Note 11 to Order 9, Rule 13 in Chitaley's Code of Civil Procedure, 5th edition at page 1921. There are no doubt some decisions of the Madras High Court in which a contrary view has been taken. In 'In re Venkata Subbaramiah' : AIR 1944 Mad 576 (J), it was held on the basis Of ' : AIR 1927 Mad 722 (2) (B)' and 'Palaniappa Chetty v. Subramania Chetty', AIR 1922 Mad 33 (K), that it would be within the jurisdiction of the trial Court to pass an order on a petition to set aside the ex -parte decree filed before the appeal was heard and set aside the ex -parte decree. This decision as also the one reported in -' : AIR 1927 Mad 722 (2) (B)\ simply follow the earlier decision of the Madras High Court reported in - 'AIR 1922 Mad 33 (K)'. It however appears to me that when the Case in - 'A.I.R. 1922 Mad 33 (K)' is carefully examined, it does not lend support to the contention that in circumstances such as the one present here the trial court would have jurisdiction to pass (sic) order on an application to set aside the ex parte decree.