K.S. Paripoornan, J.
1. The plaintiffs in O. S. 19 of 1977 of the Munsiff's Court, Kozhikode are the appellants. The defendants are the respondents. The suit was one for recovery, of possession of plaint schedule property on the strength of title. It was demised by the plaintiffs' mother to the 1st defendant and one Aboobacker on 20-1-1971. Proceedings were taken for recovery of arrears of rent. The plaintiffs mother filed O. P. (R. C.) 138 of 1975 for eviction. It was allowed. In execution of the above decree in M. P. 767 of 1975, the plaint schedule property was taken delivery of by the plaintiffs. Certified copy of the order in O. P. (R. C) 138 of 1975 dated 16-10-1976 is Ext. A 1 and the decree is Ext. A 2. The delivery report is Ext. A9 dated 6-1-1976. Since there was obstruction in taking delivery, it was effected with the help of police. The 1st defendant trespassed into the plaint schedule property. A police complaint was filed against him. He occupied the house immediately thereafter. The plaintiffs prayed for recovery of possession on the basis that the defendants had trespassed into the plaint schedule house. The defendants contested the suit. They contended that the lease was really in favour of defendant 1. Aboobacker was only an employee. In O. P.(R. C.) 138 of 1975 the notice was got returned by influencing the Process Server. That resulted in the petition being ordered ex parte. In pursuance to the ex parte order, the Amin went to the plot to effect delivery.
2. The defendants approachedthe court for staying the execution. On their application the Amin was recalled He returned from the spot without effecting the delivery. But through the influence of the plaintiffs' father, the Amin had filed a false delivery report. The defendants are entitled to protection of Act 1 of 1964. The suit is not maintainable.
3. The trial Court held that the plea of tenancy need not be decided, that the plaintiffs took delivery of the plaint schedule property, and that the delivery was properly effected. On these premises, the trial Court ordered recovery of possession of the building on the strength of title. The suit was decreed. The defendants appealed to the Subordinate Judge's Court, Kozhikode. By judgment dated 7-2-1980, the learned Subordinate Judge set aside the judgment and decree of the trial Court and dismissed the suit. It was held that since the delivery warrant was recalled by the court, it cannot be said that the plaintiffs got an effective, valid and legal delivery. It was also held that there is considerable doubt about the delivery report and it is not a valid one. The plaintiffs have come up in second appeal.
4. The following questions of law were formulated as substantial questions of law at the time of admission :
' 1. Can the delivery effected in this case be considered as ineffective when there is the presumption available under Section 114(e), Evidence Act, and there is nothing to indicate that the order for recall was passed before the delivery was effected?
2. Was the lower appellate Court justified in relying on the dictum quoted from 1958 Cal LJ 298 in a case like this and to say that in all cases delivery of possession was without authority, on the facts obtaining here, wherein delivery has been effected and there is nothing to indicate when the order for recall was passed?
3. Was the lower appellate Court justified in holding that there was no effective delivery in the face of Exts. A 9 and A 10 and other documents?
4. Could order for recalling delivery be effective after delivery was effected?'
5. I heard counsel for the appellants, Mr. V.R. Venkitakrishnan, and counsel for the respondents, Mr. Sreekumar. At the time of hearing of the second appeal, it is common ground that the ex parte order passed in O. P. (R. C.) 138 of 1975 was set aside and the petition was restored to file. The appellants' counselargued that the lower appellate Court was in error in holding that the legal effect of a recall of delivery warrant is to render ineffective and invalid the delivery already made. It was also contended that the presumption under Section 114, Evidence Act, should have been applied and Ext. A 9 upheld by the lower appellate Court. The learned Subordinate Judge was wrong in interfering with the decree of possession ordered by the trial Court.
6. In view of the subsequent event, that the ex parte order passed in 0. P. (R. C.) 138 of 1975 was set aside and the petition was restored to file, it is not necessary to decide the larger issue raised in this case regarding the legal effect of a recall of delivery warrant, namely, whether the effect of recall is to render invalid or ineffective the delivery already made. It appears to me that the position obtaining here by the setting aside of the ex parte order in O: P. (R. C.) 138 of 1975 is analogous or similar to the setting aside of an ex parte decree under. Order 9, Rule 13, C. P. C It is well settled that the legal effect of setting aside of an ex parte decree is to obliterate or wipe out all proceedings subsequent to the ex parte order. Naturally, the result of the ex parte decree, being set aside, is that the parties will be relegated back to the same position as they occupied before the non-appearance of the defendants. Following the decisions of the Calcutta, Madras and Travancore High Courts, delivering the judgment of the Division Bench, Govinda Pillai, J. observed in Kumararu Narayanaru v. Padmanabha Kurup Gopala Kurup, AIR 1953 Trav Co. 426 at p. 427 as follows:
'The effect of setting aside an ex parte decree is to restore the parties to the position they occupied previous to the passing of that decree so that the court proceeds to determine the suit as it stood before that decree. Any attachment that has been issued or any sale that has taken place pursuant to the ex parte decree becomes null and void.............. Theremight be other considerations when the auction- purchaser is a stranger and not the decree-holder.'
I fully concur with the said observations. If attachment or sale, that took place pursuant to the ex parte decree, becomes null and void, by the same reasoning the delivery, effected through court in pursuance to the ex parte decree, should also share the same fate. In this view of the matter, the delivery of property in |his case, which culminated in Ext. A 9 delivery report, is ineffective and invalid. The plaintiffs are incompetent to place reliance on the same. The basis of the suit for recoveryof possession of the plaint schedule property is non est. The judgment and decree of the lower appellate court, dismissing the suit, is justified in law. No interference is called for in this second appeal.
The second appeal is without merit. It is dismissed. There shall be no order as to costs.