PATAKDHARI RAI Vs. MANKARAN RAI

JUDGEMENT

(1.) The facts of the case out of which this appeal has arisen are these. The plaintiffs-respondents brought a suit against several defendants, one of whom was the appellant Palakdhari Rai. He did not appear at the hearing of the suit but some of the other defendants did so and a decree was passed against all the defendants by the Court of first instance. Prom this decree an appeal was preferred by all the defendants, except Palakdhari who was made a respondent. The lower appellate Court affirmed the decree of the Court of first instance and dismissed the appeal. Thereupon Palakdhari applied under Section 108 of the Civil P. C., 1882, to the Court of first instance to have the decree of that Court, which had been affirmed by the appellate Court, set aside on the ground that he had no notice of the suit. The Court of first instance granted his application, re-opened the case and in the result dismissed, the suit. Upon appeal to the lower appellate Court, it was held that the Munsif in re-admitting the suit had acted without jurisdiction, and that the decree finally passed by him was also without jurisdiction. That Court accordingly allowed the appeal and reversed the decree of the Munsif. An appeal was preferred to this Court from the decree of the lower appellate Court, and the learned. Judge of this Court, before whom it came oh for hearing, dismissed the appeal. From his judgment this appeal has been preferred under the Letters Pattent.

(2.) We are of opinion that the conclusion at which the learned Judge of this Court arrived is correct. The decree originally passed by the Court of first instance having been affirmed by the lower appellate Court, the decree of the lower appellate Court became the decree in the cause. The Court of first instance had, therefore, no jurisdiction to entertain an application to have that decree set aside. In granting the application made by the appellant Palakdhari under Section 108 of Act 14 of 1882, the Court acted ultra vires. Therefore, the decree which the Court passed after granting that application was passed without jurisdiction and the lower appellate Court was right in holding that the decree could not be sustained.

(3.) The learned Counsel for the appellant relies on the provisions of Section 591 of the Civil P. C., 1882, and urges that as the order under Section 108 was final, the question of it correctness or otherwise could not be made a ground of appeal when the plaintiff appealed from the decree finally-passed by the Court of first instance. We do not agree with this contention. In our opinion the order referred to in that section is an order which the Court had jurisdiction to make but in making which the Court had committed an error or irregularity. This case is very similar to that of Dhanai Sardar V/s. Tarah Nath Chaudhri 5 Ind. Cas. 525 decided by the High Court of Calcutta. In that case it Was held under similar circumstances that the Court of first instance had no jurisdiction to set aside a decree which had been affirmed in appeal.