1. I agree with the Judgment, which my learned brother is about to deliver and have nothing to add to it.
2. The Original Suit (O.S. 95 of 1916) out of which the present petition arises was filed against three defendants. The 2nd and 3rd defendants not having appeared in the suit, the decree which was passed against all the defendants was an ex parte decree, so far as the 2nd and 3rd were concerned, The 1st defendant filed an appeal to this High Court in which he impleaded the 2nd and 3rd defendants as respondents. While the appeal was pending, the 2nd defendant applied in this Court (C.M.P. No. 1152 of 1920). Reported in 41 M.L.J. 90 to set aside the ex parte decree' The petition was considered along with the appeal and was dismissed by Wallis C. J. and my learned brother. Their Lordships were of opinion that, during the pendency of an appeal, an application to set aside the ex parte decree of the first court does not lie in the appellate court but ought to be filed in the first court.
3. Now that the appeal is disposed of, the 2nd defendant renews his application. The plaintiff objects on two grounds (a) that the application does not he here and (b) that it is barred by limitation, (a) Taking the first point, the several possible cases that may arise may be considered in order .--(L) When the defendant who did not appear in the first court is not impleaded in appeal. Obviously this is a case where the appellate court has no jurisdiction to deal with an application to set aside the ex parte decree (Vide Ratnachandra Mallaya v. Narasaya Hegade (1917) 7 L.W. 10 Indu Miya v. Darbakst Bhaniya (1911) 11 C.L.J. 42 and Hed lot v. Karan (1912) 15 C.L.J. 241 When he is made a party to the appeal and the application is made while the appeal is pending. In this case too the first court seems to me the proper court in which the application has to be made. I agree with the reasoning of Wallis, C. J. and my learned brother in the order already referred to Reported in 41 M.L.J. 90. Of the cases now mentioned by the petitioner Sadayakonan v. Annamalai Udyan (1915) 2 L.W. 529 and Ramachandra Mallaye v. Narasaya (1917) 7 L.W. 10 were not then cited and Mathura Prasad v. Ram Charan Lal I.L.R. (1915) All. 208 was cited and considered. I am unable to agree with the two former decisions. The decisions in Kunued Nath Roy Choudhury v. jotindra Nath Chowdhury I.L.R. (1911) Cal. 316 (cited in the former order and Sarat Chandra Dhar v. Damodar Manna (1909) 12 C.W.N. 885 affirmed in L.P.A. in Damodar Manna v. Sarat Chandra Dhar (1909) 13 C.W.N. 846 also support this view. (3) Where he is made a party to the appeal but the application is filed after the appeal is disposed of, Even in such a case, the language of Order IX Rule 13 would point to the first court as the proper court for making the application--a consideration adverted to, but to which, I think with due deference, sufficient weight has not been given Sadayar' Konan v. Annamalai Udayan (1915) 2 L.W. 529, The weight of the decisions in Sankara Bhatta v. Subbaraya Bhatta I.L.R. (1907) Mad. 535 and Dhorai Sardar v. Tarak Nath Choudhury (1910) 12 C.L.J. 56 has been considerably weakened by the criticism of the former in the prior order by Wallis, C. J, and my learned brother, We must remember that in the discussion of this question, it must be assumed that the defendant who was absent in the first court appeared in the appellate court for if he was absent in the appellate court also, (Order XLI Rule 17(2) an application to set aside the appellate ex parte decree would lie under Order XLI Rule 21 and Art, 169 (not Art 164) of the Limitation Act would apply. On this assumption, it is difficult to describe the appellate decree as an ex parte decree of the appellate court except by a straining of language which is not justified; and if it can be so described, the petitioner would have a second period of limitation under Art 164 starting from the appellate decree-an anamalous result which could hardly have been intended by the legislature, It may be urged by the petitioner that, it is equally anamolous if the first court has jurisdiction to set aside an ex parte decree after it is affirmed by the appellate court, But, in reply to this apparent anomaly, I would urge two considerations (l) an application after the disposal of the appeal, to set aside the ex parte decree of the 1st court can hardly be in time and can arise very rarely. The legislature might well have been content not to anticipate and provide for a case which is most unlikely, (2) in such cases, the proper course of of the applicant would be not to wait till the disposal of the appeal but to get an adjournment of hearing of the appeal to enable him to apply before the first court to set aside the exparte decree. Such on application for adjournment might well be granted if he is in time (which is not the case with the former petition, C.M.P. No. 1152 of 1920). These remarks lead me to the next point viz., limitation.
4. The present petition is clearly barred by limitation. No doubt, under Order 9 Rule 13(2) (as amended by the Madras High Court) we have power to excuse the delay. Bui even the former petition filed during the pendency of the appeal was out of time. The petitioner failed to apply in time in any court and no justification has been attempted before us for such failure. The petition is therefore clearly barred and is dismissed with the costs of the plaintiff.