MONO MOHAN KUNDU Vs. NRIPENDRA NATH NANDI

JUDGEMENT

(1.) One Moti Lal Kundu died leaving seven sons, Khetra Mohan, Lalit Mohan, Mono Mohan, Mohini Mohan, Kristo Mohan, Jatindra Mohan and Radhika Mohan, Khetra being the eldest and Radhika being the youngest. Shortly after the death of Motilal, leaving some infant sons, the other sons of Motilal borrowed a sum of Rs. 50,000 from some Nandis for the purpose of carrying on their ancestral business on a security of 6/7 the share in some of their ancestral properties. The Nandis thereafter instituted a suit to recover the mortgage money. In this suit Mono Mohan, Mohini Mohan, Kristo Mohan and Radhika Mohan were impleaded as defendants 1 to 4. Lalit Mohan having died after the mortgage his infant sons, defendants 6 and 7, were also impleaded as defendants. Jatindra Mohan having died childless, his mother, that is the widow of Motilal, was also made a party defendant to the suit. The suit was contested by defendants 2, 3 and 4. The natural guardian of defendants 6 and 7 having failed to appear in the suit, a pleader of the Court was appointed their guardian. Summons was served upon him but he did not contest.

(2.) A preliminary decree was passed in the suit on 22 February, 1929 on contest against defendants 2, 3, 4 and ex parte against defendants 1, 4, 5, 6 and 7. The decree was made final on 26 March 1929. Thereafter defendants 2, 3 and 4 filed an appeal to this Court on 23 May 1929. On June 1929 defendant 6 filed an application for setting aside the ex parte decree passed against him under Order 9, Rule 13, Civil P.C. On 27 July 1929 defendant 1 filed another application for setting aside the ex parte decree. The appeal to this Court, preferred by defendants 2, 3 and 4, was disposed of on 7 June 1933. The appeal of defendant 4 was allowed and the suit was dismissed against him and the decree of the trial Court was affirmed by this Court. The applications of defendants 1 and 6 came up for hearing before the learned Subordinate Judge on 25 September 1934, and by his order dated 29th September 1934 the learned Judge rejected the two applications on the ground that the decree of the Subordinate Judge against all the defendants except defendant 4 having been affirmed on appeal by this Court, there was no ex parte decree of the trial Court in existence which could be set aside by him under the provisions of Order 9, Rule 13 of the Code. Hence these two appeals, M.A. No. 107, is by defendant 6 and M.A. No. 104 is by defendant 1. By Rule 13 of Order 9, Civil P.C., the Court which passes an ex parte decree has authority to set aside the ex parte decree. The exercise of this power pre-supposes the existence of an ex parte decree. If an appeal is preferred against the ex parte decree, the ex parte decree continues till the appellate Court has determined the rights of the parties in controversy. After such determination by the Court of appeal, the decree of the trial Court ceases to exist. If the decree of the trial Court is affirmed in appeal, it merges in the decree of the Court of appeal and consequently ceases to have any existence: See the case in Brij Narain V/s. Tejbal Bikram (1910) 32 All 295.

(3.) The contention of the learned Advocate appearing on behalf of the appellants in these two appeals however is that in spite of the decree of the Court of appeal there is still a subsisting decree of the trial Court over which the trial Court has control. It is argued that the decree of the trial Court against defendants 2 and 3 only, was affirmed by the Court of appeal and not the decree against the other defendants, including the appellants in these two appeals, and consequently the ex parte decree of the trial Court against the appellants still subsists. Whether the entire decree or a portion of it merged in the decree of the Court of appeal would depend upon the scope of the appeal which was preferred by defendants 2 and 3 against the decree of the trial Judge. The scope of an appeal would depend not only on its value but also on a variety of things as well, namely the subject matter involved, the parties concerned therein and the manner of its disposal: see Kalimuddin Ahmmad V/s. Esabakuddin .