1. The plaintiff sued defendants Nos. 1 to 3 in ejectment, and the 4th and 5th defendants were subsequently impleaded as successive purchasers of the 3rd defendants' rights. On 27th November, 1923, an ex parte decree was passed against ail the defendants. I will deal first with the case of the 5th defendant which is the subject of C.R.P. No. 357. He applied to the trial Court to have the ex parte decree set aside and he also filed an appeal against the decree. The appeal was dismissed on 8th April, 1924, and later, on 6th August, 1924, the District Munsif took up the application to set aside the ex parte decree and dismissed it. There was an appeal against this decision and the Subordinate Judge reversed it and directed that the suit should be restored to file. The broad question now raised is one of jurisdiction. Whether the District Munsif was competent to entertain the application to set aside the ex parte decree after an appeal from that decree had been dismissed. Admittedly the point was not raised before the District Munsif when he passed his order, but I agree with the petitioner that, as a pure question of law, it may be taken here.
2. It was formerly the view of this Court that, as soon as an appeal was filed, and even before it had been disposed of, 'the farther litigation and all matters connected with it are transferred to and placed under the control of the Appellate Court'. This was the doctrine adopted in Ramanadhan Chetty v. Narayanan Chetty 27 M. 602 where the proceeding under consideration was one of review, and it was re-affirmed in Sankara Baita v. Svbrayar Bhatta 30 M. 535 : 17 M.L.J. 436 where, as here, the power of the lower Court to set aside an ex parte decree was in question. Subsequently, the question was raised and referred to a Full Bench in Chennia Reddi v. Pedda Obi Reddi 2 Ind. Cas. 802 : 32 M. 416 : 6 M.L.T. 135 : 19 M.L.J. 388 whether Ramanadhan Chetti v. Narayanan Chetty 27 M. 602 was rightly decided, and it was held that it was not, that where an application for review is presented by a party and an appeal is afterwards preferred, the Court to which the application for review was made was not thereby deprived of jurisdiction to entertain the application. Wallis, J., (as he then was) was a party both to this case and to Sankara Battay. Subrayar Bhatta 30 M. 535 : 17 M.L.J. 436 and in delivering the leading judgment of the Full Bench, distinguished the latter case on the ground that 'no question arose or was considered in that case as to the present point.' I take the learned Judge's meaning to have been that while the fact that an appeal had been preferred would not preclude entertainment of an application for review, it does not follow that it would not preclude entertainment of an application to set aside an ex parte decree. I confess that I have not myself been able to discover any reason why the broad principle formulated in Ramanadhan Chetti v. Narayanan Chetty 27 M. 602 and rejected by the Full Bench in the case of a review, should hold good in the case of an order setting aside a decree passed ex parte. Indeed the language of Order IX, Rule 13 of the Civil Procedure Code which enables a defendant to 'apply to the Court by which the decree was passed for an order to set it aside', would seem to reserve that power even after an appellate decree has been passed. The learned Judges who decided Sadaya Konan, v. Annamalai Udayan 29 Ind. Cas. 458 : 2 L.W. 529 were impressed by this consideration, and observed that if the matter were res Integra they would have had considerable hesitation in holding that an Appellate Court had power to set an ex parte decree but they followed Sankara Batta v. Subrayar Bhatta 30 M. 535 : 17 M.L.J. 436 and decided the question in the affirmative. They add that the learned Judges who decided the Full Bench case were of opinion that Sankara Batta v. Subrayar Bhatta 30 M. 535 : 17 M.L.J. 436 was good law, but I have not myself been able to extract from the Full Bench judgment an expression of this opinion. Had the matter rested there, I should have seen my way clear to follow the principle that the existence of an appellate decree divested the trial Court of the power to set aside its own decree passed ex parte, a principle which appears to be in consonance with the theory, lucidly formulated by Bhashyam Iyengar, J. in Kristnama Chariar v. Mangammal 26 M. 91 that there cannot be two final decrees in a suit, one by the Court of first instance and other by the Court of Appeal, but that the appellate decree supersedes the original decree and is the sole final decree. But the question arose again in Palaniappa Chetty v. Subramanyam Chetty 66 Ind. Cas. 59 : 1921 42 M.L.J. 12 : 14 L.W. 609 : (1921) M.W.N. 796 : A.I.R. 1922 Mad. 33 and it was held by Ramesam, J.; Oldfield, J. concurring, that even where a defendant has been a party to an appeal which has been disposed of, an application by him to set aside an ex parte, decree, does not lie in the Appellate Court, but ought to be filed in the first Court. I cannot accede to the contention either that the view expressed in this case was obiter or that no definite opinion was expressed at all. The decision affords a direct authority, against the position which the petitioner here contends for, since it can make no difference whether the party making the application was appellant or respondent in the appeal and sitting singly in revision, I feel myself bound to follow it. In these circumstances, no useful purpose will be served by discussing the conflicting case-law, arising from decisions by other High Courts.
3. The respondent has raised a further question, which however, on the view I have adopted, does not arise. The learned Subordinate Judge who disposed of the appeal dismissed it on the ground admittedly, an erroneous ground, that no appeal lay. This decision was embodied in a decree dismissing the appeal, and directing each party to bear his own costs; but notwithstanding the existence of his decree, it is not easy to see, how an Appellate Court which conceived itself unable to interfere with an original decree in appeal, can be taken in fact to have passed a decree superseding it. On this ground also, which I do not think necessary to discuss more elaborately, the District Munsif would not have been deprived of the power to entertain the application.
4. I have been taken into the merits of the Subordinate Judge's order reversing that of the District Munsif, and directing that the suit be restored, The plea advanced by the 5th defendant was one of illness. The District Munsif has given what appear to me to be very good reasons for suspecting the truth of the plea, and the Subordinate Judge has given very poor reasons for accepting it. But that circumstance would not justify me in reversing his order, and 1 cannot agree that there was no evidence which, if believed, would not justify a Court in holding that this defendant had sufficient grounds for not appearing.
5. Turning to C.R.P. No. 977 of 1925, the same question of jurisdiction is raised, and I must decide it in the same way. The excuse which the 4th defendant gave for his absence was that he had a wound upon his knee attended by swelling and fever but that was not the reason accepted by the Appellate Court. The learned Subordinate Judge found that this defendant left the conduct of the case to the 5th defendant, and that except for this reason, he had nothing else to justify his absence. Apparently the Court did not accept the excuse, because after referring to it, the judgment continues 'but considering that the application of the 5th defendant for setting aside the ex parte decree has been allowed and there seems to be a common ground for all these contesting defendants, the application of this defendant also has to be allowed.' It would seem that in making this observation, the Subordinate Judge had in mind the proviso to Order IX, Rule 13, Civil Procedure Code, viz., 'Provided 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.'
6. But the learned Vakil who appears for this respondent has not sought to show me that the decree in this case is of such a nature, so that I conclude, he does not feel that he can rely upon this provision. The Subordinate Judge himself as will be seen from the passage, I have quoted does not record any finding as to the indivisible nature of the decree; so that, in setting it aside as against the 4th defendant, he acted upon no ground recognised by law, and his order cannot be upheld.
7. The result accordingly is that C.R.P. No. 357 of 1925 is dismissed with costs. Civil Revision Petition No. 977 of 1925 is allowed and the decree of the Subordinate ' Judge of Dindigul in C.M.A No 32 of 1924 is set aside and the order of the District Munsif of Dindigul in I.A. No. 40 of 1924 restored. Respondent in this Civil Revision Petition will pay petitioner's costs throughout.