SUBRAMANIA AIYAR ALIAS GURUMURTHI AIYAR Vs. VARADARAJULU NAIDU

JUDGEMENT

(1.) The plaintiff sued defendants 1 to 3 in ejectment, and the 4 and 5 defendants were subsequently im-pleaded as successive purchasers of the 3 defendant's rights. On 27th November, 1923, an ex parte decree was passed against all the defendants. I will deal first with the case of the 5 defendant which is the subject of the C.R.P. No. 357. He applied to the trial Court to have the ex parte decree set aside and he also filed an appeal against the decree. The appeal was dismissed on 8 April, 1924, and later on 6 August, 1924 the District Munsif took up the application to set aside the ex parte decree and dismissed it. 1 here was an appeal against this decision and the Subordinate Judge reversed it and directed that the suit should be restored to file. The broad question now raised is one of jurisdiction-- whether the District Munsif was competent to entertain the application to set aside the ex parte decree after an appeal from that decree had been dismissed. Admittedly the point was not raised before the District Munsif when he passed his order, but 1 agree with the petitioner that, as a pure question of law, it may, be taken here.

(2.) It was formerly the view of this Court that, as soon as an appeal was filed, and even before it had been disposed of "the further litigation and all matters connected with it are transferred to and placed under the control of the appellate Court". This was the doctrine adopted in Ramanadhan Chetty V/s. Narayanan Chetti (1904) ILR 27 M 602 : l4 MLJ 321, where the proceeding under consideration was one of review, and it was re-affirmed in Sankara Bhatta V/s. Subraya Bhatta (1907) ILR 30 M 535 : 17 MLJ 436 where, as here, the power of the Lower Court to set aside an ex parte decree was in question. Subsequently, the question was raised and referred to a Full Bench Chenna Reddi V/s. Peddaobi Reddi (1909) ILR 32 M 416 : 19 MLJ 388 (F.B) whether Ramanadhan Chetty V/s. Narayanan Chetti (1904) ILR 27 M 602 : l4 MLJ 321 was rightly decided, and it was held that it was not, that where an application for review is presented by a party and an appeal is afterwards preferred, the Court to which the application for review was made was not thereby deprived of jurisdiction to entertain the, application. Wallis, J., (as he then was) was a party both to this case and to Sankara Bhatta v. Subraya Bhatta (1907) ILR 30 M 535 : 17 MLJ 436 and, in delivering the leading judgment of the Full Bench, distinguished the latter case on the ground that "no question arose or was considered in that case as to the present point." I take the learned Judge's meaning to have been that while the fact that an appeal had been preferred would not preclude entertainment of an application for review, it does not follow that it would not preclude entertainment of an application to set aside an ex parte decree. I confess that I have not myself been able to discover any reason why the broad principle formulated in Ramanadhan Chetty V/s. Narayanan Chetti (1904) ILR 27 M 602 : l4 MLJ 321 and rejected by the Full Bench in the case of a review, should hold good in the case of an order setting, aside a decree passed ex parte. Indeed the language of Order 9, Rule 13 of the C. P. C which enables a defendant to apply to the Court by which the decree was passed for an order to set it aside", would seem to reserve that power even after an appellate decree has been passed. The learned Judges who decided Sadaya Konan V/s. Annamalai Udayan (1915) 2 LW 529 were impressed by this consideration, and observed that if the matter were res Integra they would have had considerable hesitation in holding that an appellate Court had power to set aside an ex parte decree but they followed Sankara Bhatta V/s. Subraya Bhatta (1907) ILR 30 M 535 : 17 MLJ 436 and decided the question in the affirmative. They add that the learned Judges who decided the Full Bench case were of opinion that Sankara Bhatta V/s. Subraya Bhatta (1907) ILR 30 M 535 : 17 MLJ 436 was good law, but I have not myself been able to extract from the Full Bench judgment an expression of this opinion. Had the matter rested there, I should have seen myself clear to follow the principle that the existence of an appellate decree divested the trial Court of power to set aside its own decree passed ex parte, a principle which appears to be in consonance with the theory lucidly formulated by Bhashyam Iyengar, J., in Kristnama Chariar v. Mangammal (1902) ILR 26 M 91 (FB), that there cannot be two final decrees in a suit, one by the Court of first instance and the other by the Court of Appeal, but that the appellate decree supersedes the original decree and is the sole final decree. But the question arose again in Palaniappa Chetty V/s. Subramania Chetty (1921) 42 MLJ 12 and it was held by Ramesam, J., and Oldfield, J., concurring, that even where a defendant has been a party to an appeal which has been disposed of, an application by him to set aside an ex parte decree does not lie in the appellate Court, but ought, to be filed in the first Court. I cannot accede to the contention either that the view expressed in this case was obiter or that no definite opinion was expressed at all. The decision affords a direct authority against the position which the petitioner here contends for, since it can make no difference whether the party making the application was appellant or respondent in the appeal and sitting singly in revision I feel myself bound to follow it. In these circumstances no useful purpose will be served by discussing the conflicting case-law arising from decisions by other High Courts.

(3.) The respondent has raised a further question which, however, on the view I have adopted, does not arise. The learned Subordinate Judge who disposed of the appeal dismissed it on the ground, admittedly an erroneous ground, that no appeal lay. This decision was embodied in a decree dismissing the appeal and directing each party to bear his own costs; but, notwithstanding the existence of his decree, it is not easy to see how an appellate Court which conceived itself unable to interfere with an original decree in appeal can be taken in fact to have passed a decree superseding it. On this ground also, which I do not think necessary to discuss more elaborately, the District Munsif would not have been deprived of the power to entertain the application.