P L D 1961 Dacca 90 (PLP)

2. The suit was contested by defendant No.

7. The suit was decreed on the 27th August 1957, on contest against defend ant No. 7 and ex parte against the rest. The defendant No. 7 preferred Title Appeal No. 277 of 1956, on the 25th October 1957. During the pendency of the aforesaid appeal the opposite parties Nos. 1 to 3, who happened to be defendant Nos. 22, 24 and 25 respectively in the Title Suit filed an application under Order IX, rule 13 of the Code of Civil Procedure for restoration of the suit to file after setting aside the ex parte decree, on the 11th November 1957. Thereafter on the 9th April 1958, the title appeal at the instance of defendant No. 7 was dismissed and on the 16th September 1958, the suit was restored to file. Hence the present rule.

3. It has been contended by Mr. Abdur Rouf, the learned Advocate for the petitioners that the decree passed by the learned Munsif in the suit on the 27th August 1957, having merged in the decree passed by the Appellate Court, the learned Munsif had no jurisdiction to entertain the application under Order IX, rule 13, C. P. C. and restore the suit to file and in support of this contention the learned Advocate has relied on the case of Monomohini Choudhurani and another v. Nara Narayan Roy Choudhuri and another (4 C W N 456).

4. While, on the other hand, it is contended by Mr. Salam, learned Advocate for the opposite parties that so far as the appeal by defendant No. 7 is concerned, the point raised by the learned Advocate for the petitioners may have some force in it but as regards the other defendants against whom an ex parte decree was passed and who did not prefer any appeal; there can be no merger of the Trial Court's decree into that of the Appel late Court and in support of this contention he has relied on the cases of Mono Mohan v. Niropuendra Nath Nandi and others (A I R 1937 Cal. 548) and Kalimuddin Ahmed v. Esabakuddin and others (A I R 1924 Cal, 830).

5. In the case of Monomohini Chodhurani and another v. Nara Narayan Roy Choudhuri and another (12 C L J 530), a decree was passed against defendants Nos. 1 and 2 on contest and ex parte against the rest. Defendants Nos. 1 and 2 preferred an appeal, in which the other defendants were not made parties, which was dismissed. Thereafter an application under Order IX, rule 13 of the Code of Civil Procedure was moved before the learned Munsif for restoration of the suit. The learned Munsif restored the suit in full. It was held in that case (4 C W N 456) that the order of restoration by the learned Munsif so far as defend ants Nos. 1 and 2 were concerned, was without jurisdiction in as much as the decree passed by the learned Munsif against defendants Nos. 1 and 2 merged into that of the Appellate Court. So this decision, in no way, helps the petitioners.

6. In the case of Bhonai Sardar and others v. Tarak Nath Choudhury (A I R 1937 Cal. 548) it was held that when a decree was indivisible in that case the trial Court had no jurisdiction to restore a suit in full to file after an appeal, at the instance of some of the parties, had been dismissed. In the case of Mono Mohan Kundu v: Nripendara Nath Nandi and others it was held: "The exercise of this power (under Order IX, rule 13, C. P. C.), presupposes the existence of an ex parte decree. If an appeal is preferred against the ex parte decree, the ex parte decree continues till the Appellate Court has determined the rights of the parties in controversy. After such determination by the Court of appeal, the decree of the trial Court ceases to exist. If the decree of the trial Court is affirmed in appeal, it merges in the decree of the Court of Appeal and consequently ceases to have any existence : Whether the entire decree or a portion of it merged in the decree of the Court of appeal would depend upon the scope of the appeal which was preferred by defendants 2 and 3 against the decree of the trial Judge. The scope of an appeal would depend only on its value but also on a variety of things as well, namely the subject‑matter involved, the parties Concern ed therein and the manner of its disposal." In the case of Kalimuddin Ahmed v. Esabakuddin and others, as stated above, it was held: "When the ex parte decree has been confirmed or otherwise disposed of on appeal the Court which passed the ex parte decree has no longer any power to entertain an application to set aside, even though the application was made before the appeal was filed: Nathura v. Ram Charan. The same principle will hold good, even if the appeal has been preferred by a party other than the defendant against whom the decree was passed ex parte, provided the decree was one and indivisible. Dhanai Sardar v. Tarak Nath Choudhury. Now, the test to be applied to determine whether the Subordinate Judge had jurisdiction to vacate ex parte decree is whether in spite of the appeal presented to this Court, there was still a subsisting ex parte decree over which the Subordinate Judge had control. The answer to the question would depend upon the scope of the appeal by which expression is meant not merely the value of it, but a variety of other things, as well, viz., the subject‑matter involved, the parties concerned therein and the manner of its disposal."

7. Relying on these authorities Mr. Salam urges that in this case it appears from the written statement of defendant No. 7 that he only claimed right, title and interest for 1/3rd share of plot No. 2255 on the basis of a purchase from one Gul Mohammad Bhuiyan, that so far as his claim is concerned, the decree passed by the learned Munsif has merged in the decree passed by the Lower Appellate Court and as such there cannot be any restoration of the judgment and decree to that extent and that there is nothing on record to show that the applicants, namely, opposite parties Nos. 1 to 3 are claiming through defendant No. 7 but their claim is based on other sources. It is further contended that the subject‑matter of the appeal at the instance of defendant No. 7 cannot be more than 1/3rd of plot No. 2255, whereas the subject‑matter of this suit is two plots, namely, 2255 and 2254, the former measuring 1.40acres and the latter measuring 1.17 acres ; that the decree that has been passed by the Appellate Court concerns only the right, title and interest of defendant No. 7; and that it does not concern, in any way, the right and interest of the other defendants against whom ex parte decree has been passed. In my opinion, this contention has some force in it. As already stated, it is apparent that the decree passed by the Appellate Court was in an appeal by defendant No.

7. In the appeal only the right, title and interest of defendant No. 7 was determined and as such the trial Court's decree so far as defendant No. 7 is concerned merged in the decree passed by the Appellate Court. But the same cannot be said in respect of other defendants against whom ex parte decree was passed by the trial Court and whose claim was not the subject‑matter of appeal, though they might have been made party respondents in that appeal, because in my opinion it is the substance and not the form of the appeal which should be looked into. Furthermore it is not proved that the decree passed in the suit is indivisible rather the written statement shows that defend ant No. 7 claimed a certain portion in the suit lands absolutely. Order IX, rule 13 of the Code of Civil Procedure authorises any of the defendants against whom an ex parte decree is passed to file an application under Order IX, rule 13 of the Code of Civil Procedure. In this view of the matter I find no substance in this case. Accordingly the order restoring the suit to file is modified to this extent that the order, restoring the suit so far as defendant No. 7 and those respondents whose right was at issue and was the subject‑matter of the appeal by defendant No. 7 are concerned is dismissed and the orders restoring the suit so far the other defendants are concerned against whom the ex parte decree was passed, is maintained. With this modification this Rule is discharged. In the circum stances, I make no order as to costs. K. B. A. Rule discharged.