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Mathura Prasad Vs. Ram Charan Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1915)ILR37All208
AppellantMathura Prasad
RespondentRam Charan Lal
Excerpt:
civil procedute code (1908), order ix, rule 3 - decree ex parte--application to set aside decree--appeal--decree confirmed in appeal before hearing of application to set it aside. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under..........subordinate judge of cawnpore, dismissing an application presented by the appellant to have a decree passed against him ex parte set aside on the ground that he received no notice of the institution of the suit. it appears that the suit was one on a mortgage and that there were several defendants including the present appellant. the case was decided by the court of first instance on the 20th of september, 1911. on the 30th of november, 1911, the present appellant presented his application to have the decree set aside as against him. when the application was called on for hearing it was discovered that the file of the original suit had been sent to this court in consequence of an appeal which had been filed by other defendants. the hearing of the application was put off from time to.....
Judgment:

Chamier and Piggott, JJ.

1. This is an appeal against an order of the Additional Subordinate Judge of Cawnpore, dismissing an application presented by the appellant to have a decree passed against him ex parte set aside on the ground that he received no notice of the institution of the suit. It appears that the suit was one on a mortgage and that there were several defendants including the present appellant. The case was decided by the court of first instance on the 20th of September, 1911. On the 30th of November, 1911, the present appellant presented his application to have the decree set aside as against him. When the application was called on for hearing it was discovered that the file of the original suit had been sent to this Court in consequence of an appeal which had been filed by other defendants. The hearing of the application was put off from time to time, the court apparently being of opinion that it was unnecessary or impossible to take up the application until after the appeal had been disposed of by this Court. The appeal was disposed of by this Court on the 24th of February, 1913, and after the record had been returned to the court below the applicant's application was taken up. It was dismissed by the Subordinate Judge on the ground that he had no jurisdiction to alter or set aside the decree passed by him inasmuch as it had been confirmed by and become, as he says, merged in the decree passed by this Court. We have been referred to several decisions bearing on the question whether a court of first instance has power to alter or set aside its decree alter an appeal has been filed against that decree. There seems to be some difference of opinion on the question whether a lower court can entertain an application for review or to set aside or alter its decree while an appeal against the decree is pending in a superior court, but 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. In the present case as shown above the application of the applicant was made before the appeal was filed to this Court and it may be that even after the appeal was filed the Subordinate Judge might have disposed of the application. But now that the decree of the lower court has been superseded by the decree of this Court we feel bound to hold that the Subordinate Judge has acted rightly in rejecting the application. It seems to us that the appellant ought to have insisted on having his application heard, and, if the Subordinate Judge declined to take up the application, he should have applied to this Court for an order requiring the Subordinate Judge to take up the application, or he should have presented an original application to this Court to set aside the ex parte decree. As matters now stand nothing can be done; the appeal must be dismissed.

2. The respondent contends that the appeal has been undervalued. The valuation of the original suit was over Rs. 5,000, and a decree was passed in favour of the plaintiff for over Rs. 6,000, and it is contended that the proper valuation of this appeal is the amount of the decree passed on the mortgage. We are not prepared to accept this contention. The appellant is interested only in a small portion of the mortgaged property which he says he purchased in execution of a decree passed before the mortgage in suit. The measure of his interest in the suit appears to us to be the value of the property which he held. He valued his appeal at Rs. 200 and there is nothing to show that this valuation is erroneous. The appeal is dismissed with costs.


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