1. The facts involved in this rule shortly stated are as follows: If; appears that there was a suit instituted in the Court of the Subordinate Judge of Jessore being Title Suit No. 459 of 1926 by the petitioners as plaintiffs against no less than 113 persons who were made parties defendants. Out of these defendants, 1 to 102 are described as principal defendants and the rest are described as pro forma defendants. It appears further that 56 persons contested the suit by filing written statements and the rest did not appear and contest the suit although it was alleged that summons were served upon all the defendants. On 29th August 1928 the learned Subordinate Judge passed a decree in favour of the plaintiffs declaring that they were entitled to recover khas possession of the lands in suit by evicting all the defendants, inasmuch as they were found to be trespassers. Against the judgment and decree of the learned Subordinate Judge 45 of the defendants preferred an appeal to the Court of the District Judge of Jessore the appeal being numbered Title Appeal 128 of 1928. The appeal was heard on or about 22nd March 1930 and the result was that the appeal was dismissed and the judgment of the trial Court was affirmed. Against the last mentioned judgment and decree there was a second appeal to this Court which however was dismissed at the preliminary hearing under Order 41, Rule 11, Civil P. C. After the dismissal of the appeal in this Court proceedings were taken for the purpose of ascertaining mesne profits. While those proceedings were pending applications were made by three persons with whom we are immediately concerned namely, defendants 17, 18 and 19 compendiously described as the Chatterji defendants for setting aside the decree of the learned Subordinate Judge against them, which decree it may be stated in passing was an ex parte one on the ground that there was no service of summons on. them. These applications were registered as Misc. Cases 10 and 11 of 1931. After certain preliminary objections which had boon taken on the part of the plaintiffs being disposed of the learned Subordinate Judge went into evidence and found that as a matter of fact summonses were not served on those defendants, namely, defendants 17,18 and 19 and thereupon the learned Subordinate Judge ordered that the ex parte decree passed against them should stand as set aside and the suit against these defendants should be heard once more in their presence. It is against the last mentioned order which is dated 25th September 1931 that the present rule has been directed.
2. The short point that has been taken on behalf of the petitioners in this rule is that the decree having been affirmed by the appellate Court and by this Court the original decree was merged in the decree finally pronounced in this suit and that in the events which have happened defendants 17, 18 and 19 were incompetent to apply for the setting aside of the original ex parte decree under the provisions of Order 9, Rule 13, Civil P. C. Various authorities have been cited in support of this proposition, but in our opinion it is not necessary to go at length into those authorities for the simple reason that on the facts as they appear it is abundantly clear that defendants 17, 18 and 19 had not been made parties to the appeal, against the original decree, filed before the learned District Judge of Jessore. That appears from the opening sentence of the learned Subordinate Judge's judgment in the present proceeding. That being so the contentions raised on behalf of the petitioners in this rule are absolutely without substance, for the matter is concluded by authority. The cases on the subject which are numerous have all been summarized in Sir Dinshaw Mulla's Civil Procedure Code, 9th Edn., p. 547:
Where a defendant against whom an ex parte decree is passed is not joined as a party to the appeal preferred by other parties to the suit and the appellate Court does not adjudicate upon his case the ex parte decree against him does not merge in the decree of the Court of appeal so as to preclude him from applying under Order 9, Rule 18 to the Court which passed the ex parte decree to set aside the decree.
3. One among many other cases may be cited in this connexion, namely, the case of Gajraj v. Swami Nath [l9l6] 39 All. 13 where the facts were that 'A sued B, C and D and obtained ex parte decree against B and a decree on the merits against C and D, C and D appealed from the decree: B was not joined as party respondent to the appeal: the appellate Court affirmed the decree of the Court of first instance passed against C and D: it was held that this did not preclude B from applying to the Court of first instance to set aside the ex parte decree against him. The facts in the case in Gajraj v. Swami Nath(1) are identical with the facts of this case. That being so the conclusion we have come to is that the present rule is without any substance and must be discharged with costs one gold mohur.