1. The circumstances out of which this application for revision arises are these. The plaintiff applicant brought a suit against Musammat Bibi Tawaef and two other persons for restitution of conjugal rights. On 18th December 1915 the case was taken up for hearing. The other two defendants appeared and filed a written statement but the plaintiff exempted them from the claim. Musammat Bibi Tawaef did not appear and against her an ex parte decree was passed on that date. On 3rd January 1916 she preferred an appeal to the District Judge from the decree passed against her, and on the 15th, of that month she made an application to the Munsif in whose Court the suit had been filed to have the ex parte decree set aside. On the 11th May 1916 the appeal preferred by the Musammat was dismissed for default and an application to have the dismissal set aside was rejected on the 11th of June 1916. After that the Munsif took up the application filed by Musammat Bibi Tawaef to have the ex parte decree set aside, and on 30th June 1916 he dismissed the application on the ground that as an appeal had been preferred from the decree the application could not be heard. He relied on the decision of this Court in Mathura Prasad v. Ramcharan Lal 28 Ind. Cas. 261 ; 37 A. 208 ; 13 A.L.J. 283. An appeal was preferred from this order and the learned District Judge allowed the appeal, set aside the decision of the Court below and held that there were sufficient grounds for restoring the suit. It sent back the case to the Court of first instance for trial upon the merits. From this order of the District Judge the present application has been preferred.
2. I doubt very much whether this application comes within the purview of Section 115 of the Code of Civil Procedure, but on the assumption that it does, I think the application must fail on the merits. The learned Vakil who has appeared for the applicant has cited a number of rulings in support of his contention that where an appeal has been preferred from a decree and the appeal has been decided by an Appellate Court, an application by one of the parties to the suit to have the decree set aside on the ground that it was passed ex parte against him and he had sufficient reasons for not appearing on the date of hearing could not be entertained. Those rulings, to which I need not refer for the purposes of this judgment, are based on the ground that when an appeal has been preferred and heard from the decree of the Court of first instance, the decree of that Court becomes merged in the decree of the Appellate Court and consequently an application to have the decree set aside cannot be maintained in the Court of first instance, the decree of that Court having been superseded by the decree of the Appellate Court. The point was fully discussed in an elaborate judgment by Mr. Justice Sundar Lal in Gairaj Mati Tewarin v. Shami Nath 36 Ind. Cas. 307 ; 14 A.L.J. 853 ; 39 A. 13. In my opinion all these cases are inapplicable to the present case, inasmuch as the appeal to the lower Appellate Court was dismissed for default and the decision of that Court did not amount to a decree. By the definition of the word 'decree' as given in section 2 of the Civil Procedure Code it does not include an order of dismissal for default,' As the Appellate Court ordered the appeal before it to be dismissed for default, that order is not a decree, and as it is not a decree, the decree of the Court of first instance was not superseded by it and did not merge in it. This alone is sufficient for the disposal of this case. I may also add that in Abdul Majid v. Jawahir Lal 23 Ind. Cas. 649 ; 36 A. 350 ; 16 Bom. L.R. 395 ; 12 A.L.J. 624 ; 19 C.L.J. 626 ; 18 C.W.N. 963 ; 27 M.L.J. 17 ; 16 M.L.T. 44 ; (1914) M.W.N. 485 ; I.L.W. 483 (P.C.) their Lordships of the Privy Council held that the dismissal of an appeal to the Judicial Committee for want of prosecution did not render the order of His Majesty in Council a decree in the cause. The principle of that ruling also applies to the present case. The lower Appellate Court was, in my opinion, right in holding that the Munsif ought to have entertained and decided the application made by Musammat Bibi Tawaef to have the ex parte decree passed against her set aside. It appears that in the Court of first instance both parties gave evidence and, therefore, the learned Judge was competent in the appeal before him to consider that evidence. He came to the conclusion that there was sufficient ground for the non-appearance of Musammat Bibi Tawaef at the hearing of the suit. He was, therefore, justified in setting aside the order of the Court of first instance and directing the case to be restored to the file.
3. I dismiss the application with costs.