JAGESHAR Vs. CHUNI LAL

JUDGEMENT

(1.) THIS application arises under the following circumstances: Jageshar (the plaintiff) instituted a suit upon a promissory note against Ram Das, Chuni Lal and Ram Tahal, three brothers. The executant of the pro-note was only Ram Das. Nevertheless the plaintiff sought to make all three brothers liable. The Subordinate Judge granted a decree against all three brothers, but the decree was ex parte against Chuni Lal and Ram Tahal. Ram Das preferred an appeal to the District Judge but did not make Chuni Lal or Ram Tahal parties to the appeal. The appeal was dismissed. Chuni Lal made an application to the Subordinate Judge to set aside the ex parte decree against him, on the ground that he was not served. The Subordinate Judge did not go into the merits of the application. He declined to entertain the application, upon the ground that he had no jurisdiction because an appeal had been preferred to the District Judge. He appears to have acted on the authority of the case of Mathura Prasad v. Ramcharan Lal 28 Ind. Cas. 261 ; 13 A.L.J. 283 ; 37 A. 208. He does not appear to have noticed (nor does his attention appear to have been called to) the distinction between the case before him and the authority cited. In the latter all persons were parties to the appeal. In the present case neither Chuni Lal nor Ram Tahal were parties to the appeal. We think that the learned Subordinate Judge ought to have entertained the application and dealt with it on the merits. Chuni Lal, however, instead of appealing to the District Judge against the order of the Subordinate Judge refusing his application, made an independent application to the District Judge to set aside the ex parte decree. The District Judge entertained the application and the present application is to set aside the Order of the District Judge, on the ground that he had no jurisdiction to entertain the application and set aside the ex parte decree passed by the Subordinate Judge. We think that the contention has force and that the learned District Judge had no jurisdiction in the matter. The application, as we have already said, ought to have been made to the Subordinate Judge, who ought to have dealt with the matter on the merits and the remedy of Chuni Lal, if the Subordinate Judge decided against him, was an appeal to the District Judge. THIS question has been considered in the case of Gajraj Mati Tewarin v. Shami Nath 36 Ind. Cas. 307 ; 14 A.L.J. 853 ; 39 A. 13. We think that the order of the learned District Judge must be set aside. At the same time having regard to all the circumstances in the case, we think that our order should be without prejudice to Chuni Lal preferring an appeal against the order of the Subordinate Judge refusing to set aside the ex parte decree, or to an application by Chuni Lal to the Subordinate Judge for review of his judgment. We accordingly allow the application but make no order as to costs.