GAURI SHANKAR BHARGAVA Vs. JAGAT NARAIN SHAHGAL

JUDGEMENT

(1.) This is a defendant's application for the revision of an order of the Judge of the Small Cause Court of Agra, disallowing his application under Order 9, Rule 13, Civil P.C., to set aside an ex parte decree passed against him. A suit for money had been brought against the applicant in the Small Cause Court, and as he is a resident of Ajmer, service of summons on him was allowed to be effected by publication in the "Leader," and an ex parte decree was given against him. Subsequently the plaintiff applied in the High Court for a revision of this ex parte decree on the ground that he had been allowed no future interest. Notice of this application was admittedly served on the applicant, who appeared through counsel in the High Court and opposed the application, but the High Court allowed the revision. After that the defendant made this application to the Judge of the Small Cause Court to set aside the original ex parte decree.

(2.) It appears to me to be clear that the original ex parte decree of the Small Cause Court had merged in the decree given in revision by the High Court. In the case of Mathura Prasad V/s. Ram Gharan Lal A.I.R. 1915 All. 2, it was held that when the High Court had once confirmed a decree on appeal, it was not open to the Court which passed the decree to entertain an application to set the decree aside. The Bench which disposed of that case did not discuss all the authorities on the question raised, but they remarked that: All the authorities seem to be agreed that when a decree has been passed by the superior Court, the lower Court cannot alter or amend its decree.

(3.) In that case, as in the present one, the equities seemed to be in favour of the applicant, for the circumstances suggest here that the applicant has not been able to obtain an adjudication on a good prima facie case. But the decision of the Court was: "As matters now stand nothing can be done; the appeal must be dismissed." An attempt has been made on behalf of the applicant to distinguish between an appellate decree of High Court and an order passed by the High Court in revision, but I think that there is no real difference. A "decree" as defined in Section 2, Civil P.C., means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and an order passed in revision undoubtedly comes within this definition, and moreover I have ascertain, ed that in such cases, a decree is invarijably prepared in the High Court. It is necessary to make this point clear because the case law on the subject to which I have been referred deals with appellate decrees and not with orders passed in revision.