Abdur Rahim, J.
1. The first respondent as plaintiff in the suit obtained a decree against two defendants in the suit: the decree as against the appellant, who was the 2nd defendant, was passed ex parts and that against the 1st defendant after contest. The 1st defendant appealed to the lower Appellate Court to which appeal, however, the 2nd defendant was not made a party. The 2nd defendant made an application under Order Ix, rule 13, Civil Procedure Code, to the same Appellate Court to set aside the ex parts decree. The lower Appellate Court, that is, the District Judge, set aside the decree against the 2nd defendant and remanded the suit to the first Court for hearing and disposal. The appeal by the 1st defendant is, we understand, still pending in that Court. The plaintiff applied to the High Court under Section 115, Civil Procedure Code, for revision of the order of the District Judge setting aside the ex parte decree. Mr. Justice Sadasiva Aiyar, who heard the petition, set aside the order of the District Judge, but directed that the petition, of the 2nd defendant under Order IX, rule 13, Civil Procedure Code, be disposed of by the District Judge by a separate order dated simultaneously with the decision in the 1st defendant's appeal. The 2nd defendant has appealed to us against the judgment of Mr. Justice Sadasiva Aiyar, contending that the District Judge not only had jurisdiction to dispose of the petition under Order IX, rule 13, but that the order passed by him setting aside the ex parte decree was in no way irregular. On the other hand the contention of the plaintiff-respondent is that the District Judge had no jurisdiction to hear and dispose of the petition of the appellant and that the petition ought, therefore, to have been dismissed altogether.
2. The decree is not a joint decree against the 1st and 2nd defendants, but it awards two separate sums of money against the two defendants; even the costs are separately apportioned. At the same time there can be little doubt that there was a defence common to both the defendants in the suit, for instance, the question of limitation. Then, there is the further and very essential fact to be noted, viz., that the appeal of the 1st defendant to the District Judge was not against the entire decree, but only against so much of the decree as stood against the 1st defendant, and the 2nd defendant v has not been made a party at all to the appeal. The learned Advocate for the 2nd defendant has strongly relied upon a number of decisions of this Court which, he says, support his contention. He advanced two main arguments before us, the 1st is based on Order XLI, rule 33, Civil Procedure Code, which says that the Appellate Court can pass any decree which could have been passed by the First Court and that this power may be exercised by the Appellate Court, 'notwithstanding that the appeal is as to pari only of the decree, and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.' This rule, however, does not seem to have any bearing on the question raised before un by the appellant. We are not now considering what power the District Judge as Appellate Court may exercise in favour of the 2nd defendant in disposing of the appeal of the 1st defendant. We are only concerned with the question whether the Appellate Court could hear and dispose of an application made under Order IX, rule 13, to it in the first instance. The rulings cited to us in Subbarayalu Naidu v. Papammal 29 Ind. Cas. 579. Sokkappa Beddi v. Singana Beddi 23 Ind. Cas. 620, and Peria Krishnasami Naik v. Aiyappa Naik 24 Ind. Cas. 924, all deal with the question whether an Appellate Court which has seisin of a case in appeal can, in disposing of that appeal, sat aside an ex parte decree against a party to that appeal on a ground mentioned in Order IX, rule 13, Civil Procedure Code. It may be pointed out that' Mr. Justice Seshagiri Aiyar and my brother Mr. Justice Kumaraswami Sastri in a case, Sadaya Konan v. Anmmalai Udayan, 29 Ind. Cas. 458, express considerable doubt as to whether an Appellate Court which has seisin of an appeal is the proper Court to receive and dispose of a petition under Order IX, rule 13. It may also be pointed out that rule 4 of Order XLI, which deals specifically with the question of the power of the Appellate Court to make an order in favour of any of the plaintiffs or defendants who has not appealed, deals with cases where there is an appeal from the whole decree. No doubt in Order XLI, rule 33, it is stated that the Appellate Court shall have the same power to pass any decree as the Court of First Instance 'notwithstanding that the appeal is as to part only of the decree,' but that, we take it, applies to cases when other parties are also interested in that part of the decree appealed against. We may point out that Order XLI, rule 33, enunciated a general rule, while rule 4 of that Order deals with specific cases. Furthermore Order IX, rule 13, expressly gives the power to set aside an ex parte decree to the Court by which the decree was passed, and it adds a proviso that 'where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also.' It seems to us that the general terms of Order XLI, rule 33, should be read in the light of rule 4 of that Order and rule 13 of Order IX. The greatest reliance was placed by the learned Advocate for the appellant on a decision of the Division Bench of this Court in Sankara Bhatta v. Subraya Bhatta 17 M. L. J. 436. There it appears' to be laid down in broad terms that once an appeal is filed before the Appellate Court, the power to dispose of an application under Order IX, rule 13, must be taken to be vested in the Appellate Court. It even 'seems to be suggested there that the Court of First Instance would have no longer power to hear such an application. So far as the latter suggestion is concerned, it is opposed to what is expressed in Sadaya Konan v. Annamalai Udayan 29 Ind. Cas. 458, where the learned Judges say that to hold that the lower Court was deprived of jurisdiction by the presentation of the appeal to the Appellate Court would be to contravene the express language of Order IX, rule 13. As regards the other proposition, that the Appellate Court has jurisdiction to hear an application to set aside an ex parte decree once there is an appeal pending before it, that is accepted in the last case, although, as I have said, with considerable doubt. The learned Judges thought that the proposition as to the power of the Appellate Court, as stated in Sankara Bhatta v. Subraya Bhatta 17 M. L. J. 436, received general approval of the Full Bench of this Court in Chenna Beddi v. Pedda Obi Reddi 2 Ind. Cas. 802 But in the case of Sankara Bhatta V. Subraya Bhatta 17 M. L. J. 436, and in the other eases on which reliance has been placed by the appellant, the appeal appears to have been against the entire decree and the person who applied to set aside the ex parte decree was also a party to the appeal. Here, as I have pointed out, the appeal of the 1st defendant is against that part of the decree which affects him alone and the 2nd defendant has not been made' a party to it. In' fact, there are in this case two decrees though embodied in one document and the 2nd defendant is not interested in what is the subject of appeal.
3. That, I think, is a sufficient and substantial ground for distinguishing this case from the oases in Sankara Bhatta v. Subraya Bhatta 17 M. L. J. 436. Sadaya Konan v. Annamalai Udayan 29 Ind. Cas. 458, and Subbarayalu Naidu v. Papammal 29 Ind. Cas. 579.
4. The order of Mr. Justice Sadasiva Aiyar setting aside the order of the District Judge is right, but he is not right in holding that the District Judge is entitled to hear the application of the 2nd defendant without his being a party at all to the appeal of the 1st defendant. In disposing of the appeal of the 1st defendant it may be open to the District Judge, if so advised, to make the 2nd defendant a party to the appeal and dispose of the appeal according to law, passing such final orders as he may think are required in the ends of justice. Costs' hitherto will abide the result.
Kumaraswami Sastri, J.
5. I agree. The decree of the District Munsif does not impose joint and several obligations on the defendants but is a separate decree against each of the defendants, one defendant being under no liability to pay the sum decreed to be paid by the other---even the costs payable being separately dealt with. The appeal was by one of the defendants against only so much of the decree as made him separately liable and the other defendant was not a party to the appeal.
6. I am of opinion that neither rule 4 nor 33 of Order XLI of the Civil Procedure Code has any application to cases where one of the defendants, on whom a distinct and separate liability is decreed, appeals only against that portion and does not make any of the co-defendant parities. It may be open to the Appellate Court to add the other defendants as parties, but it is admitted that in the present case no such order was made. Order XLI contemplates, an appeal from the decree (proceeding on any ground common to all, the plaintiff or all the defendants) where the other parties are before the Court as parties to the appeal as respondents. Where only part of a decree is appealed against, it is difficult to see on what principle the Court can decide as to another part in which the appellant has no interest and in, oases where the person affected by the other part of the decree is not before the Court as a party. Rule 33 no doubt applies to oases where the appeal is against part of the decree, but it restricts the exercise of the power to the respondents or parties before the Court. The illustration to the rule was referred to by the appellant, hut it is clear that it refers to cases where the person affected was a party. I do not think that rule 33, which was intended to further the ends of justice, abrogates the maxim that a Court cannot affect the rights of parties without giving them an opportunity of being heard. Section 107 of the Code does not confer any powers not given by Order XLI, as Clause 2 is expressly made subject to any conditions and limitations as may be prescribed. Any application to, set aside an esc parte decree by a party, who is not made a party to the appeal should, in ray opinion, be made to the Court which passed the decree, as Order IX, rule 13, requires such applications to be made to the Court which passed the decree. The Appellate Court can only get the power by virtue of Section 107 read with Order XLI, but to enable it to do so the person applying should be a party before it. It is no doubt open to the Appellate Court to hold that a person was wrongly declared ex parte and that the suit should be heard in the merits, but this should only be done at the hearing of the appeals.