1. This was a suit in ejectment against three defendants. A decree was passed against all of them. These defendants are brothers and are members of an undivided Hindu family. Against the decree of the District Munsif, 1st defendant alone appealed. Defendants Nos. 2 and 3 were not parties to the appeal. The appeal was dismissed. The 1st defendant has preferred a second appeal. Defendants Nos. 2 and 3 applied to this Court to be made party respondents and that application was granted. They have also presented an application to this Court to set aside the decree passed against them by the District Munsif, on the ground that they were not properly served and that the order declaring them ex parte is wrong. Mr. G.S. Venkatarama Aiyar raised a preliminary objection that this Court has no jurisdiction to entertain the application. The language of Order IX, Rule 13, is clear and if the matter were res integra, we would have felt considerable hesitation in holding that this Court had jurisdiction. But in matters affecting procedure, it is desirable that there should be no conflict of decision. It was held in Sankara Bhatta v. Subraya Bhatta 30 M.P 535 : 17 M.L.J. 436 under similar circumstances, that the High Court had jurisdiction to entertain an application. When the question, whether after the preferring of an appeal, the first Court had jurisdiction to hear an application for review, was considered by the Full Bench in Chenna Reddi v. Pedda Obi Reddi 2 Ind. Cas. 802 : 32 M.P 416 : 6 M.L.T. 135 : 19 M.L.J. 388 the learned Judges were of opinion that the decision in Sankara Bhatta v. Subaraya Bhatta 30 M.P 535 : 17 M.L.J. 436 was good law. It may also be pointed out that under Section 107, Clause (2), of the Code of Civil Procedure the Appellate Court has all the powers which the Court of first instance could have exercised. Therefore, it cannot be argued that the High Court has absolutely no jurisdiction. Moreover, it is not desirable that the same matter should be pending in two Courts at the same time. In the present case, the first defendant has appealed on a ground common to himself and the other defenddants and if he succeeds, the decree will have to be set aside in its entirety. Therefore, no use will be served by the Court of first instance entertaining this application.
2. The Calcutta decisions to which our attention has been drawn do not affect the question. It was held in those cases that the lower Court was not deprived of jurisdiction by the presentation of the appeal to the Appellate Court. To hold otherwise would be to contravene the express language of Order IX, Rule 13. We think the decisions Kumud Nath Roy Chowdhry v. Jatindra Nath Chowdhry 9 Ind. Cas. 189 : 13 C.L.J. 221; Indu Meah v. Darbakhsh Bhuiyan 10 Ind. Cas. 275 : 14 C.L.J. 42 : 15 C.W.N. 798 and Hedlot Khasia v. Ka Ran Khasiani 13 Ind. Cas. 377 : 15 C.L.J. 241 are notauthorities for the position that the superior Court has no jurisdiction. Both on the grounds of convenience and on the principle of seeing that decisions affecting procedure are not constantly departed from, we hold that this Court had jurisdiction.
3. On the merits, we accept the affidavit filed by the respondent in the case. This shows that the three defendants were residing together at the time that the summons was served on the 1st defendant, who has been fighting the case in all its stages. The return of the amin says that the 1st defendant accepted service on behalf of defendants Nos. 2 and 3 and stated that these defendants had gone to Kallakurichi. The probabilities are all in favour of the defendants Nos. 2 and 3 having been aware of the service of the summons on the 1st defendant, of the progress of the suit and of the decree that was obtained against them in the Court of first instance. We do not believe this allegation that they had knowledge of the decree against them only after the filing of the second appeal.
4. We dismiss the application with costs.