P.T. Raman Nayar, J.
1. The decree passed by the first court as against the 4th defendant (the 4th respondent herein) was not an ex parte decree made under Order XVII, Rule2 of the Code although as against the remaining defendants, defendants 1, 2, 3 and 5 (respondents 1, 2, 3 and 5 herein) it was. The 4th defendant appeared by counsel and contested the suit and the decree as against him was after full contest. His only remedy against the decree was therefore an appeal -- in fact even if it were an ex parte decree he would have had a right of appeal -- Muhammed Kunju v. Saramma, 1964 Ker LT 307 deals with a case of a dismissal of a suit for the plaintiff's default and such a dismissal not being a decree within the meaning of Section 2(2) of the Code, it was held, with great respect rightly, that no appeal lay from the dismissal -- and that remedy is not taken away by the circumstance that he misguidedly and unsuccessfully prosecuted an application under Order IX, Rule13, a remedy not available to him. There is therefore absolutely no merit in the contention of the plaintiff, the appellant in this second appeal, that the 4th defendant's appeal to the lower court did not lie.
2. Coming now to the merits, the plaintiff claimed title and possession jointly with the 1st defendant under an alleged agreement by the 5th defendant to sell to them his possessory mortgage right in the suit properties in pursuance of which agreement he asserted he and the 1st defendant had been put in possession. The 4th defendant's contention was that one item, a portion of S.No. 432/8, was in his possession under an independent title and that the 5th defendant from whom the plaintiff claimed had at no time any manner of right to it. The plaintiff did not even produce the mortgage in favour of the 5th defendant under which he claimed and in cross-examination confessed that he did not know to whom S. No. 432/8 belonged or whether the 5th defendant had any right over it. Therefore, on the plaintiff's own evidence, the suit had to be dismissed as against the 4th defendant and the item in question, and the lower appellate court was right in so dismissing it although the first court had, it would appear, blindly decreed it.
3. It is said on behalf of the plaintiff appellant that it would appear from the decree of the lower appellate court that it has dismissed the suit in entirety, even as against defendants 1, 2, 3 and 5. That is not so, and counsel for defendants 2 and 8 agrees that that is not so.The appeal before the lower court was only by the 4th defendant and it was, in terms, only as against the decree against him and the Item claimed by him, not one under Order XLI, Rule4 against the decree in entirety. The lower court said in its judgment that in the state of the evidence no decree could be granted against the item claimed by the 4th defendant and when it proceeded to conclude by saying that the appeal was allowed and the decree was set aside, could only have meant that the decree was set aside as against the 4th defendant and the item claimed by him. And that is the only meaning that can be ascribed to its decree.
4. I dismiss is the appeal with costs.