P L D 1967 Dacca 27 (PLP)

MURSHED, C. J.‑This application has certain peculiar features of its own and is interesting in its development. A suit was filed against the present petitioners and others for declaration of plaintiff's title and for partition of suit‑properties. The suit was contested by the defendants, including the present petitioners, who filed a separate written statement. The present petitioners were defendants 4 to 7 in the trial Court. At the time when the suit was called on for hearing the said defendants did not appear to prosecute their defence. The suit was decreed in favour of plaintiff, ex parte against defendants 4 to 6 and, on contest, against defendants 8 and 10, and without contest, against the rest. Thereafter defendants 4 to 6 filed an application in the trial Court under Order IX, rule 13, of the Code of Civil Procedure to set aside the ex parte decree which had been passed against them. The said defendants 4 to 6 also filed an appeal against the said ex parte decree. They fully contested the appeal in which their entire defence was re‑agitated in the appellate Court. The appeal was filed by them along with another defendant, namely, defendant No. 7, and was marked Title Appeal No. 302 of 1961. In the said appeal the defence of defendants 4 to 6, in its entirety, was gone into. The appellate Court below formulated the following points for determination: "(1) Have all the properties left by Gupinath brought into hotch pot? (2) Was there any amicable partition of the disputed land? (3) Did the plot No. 745 and the entire plot 741 belong to Gupinath?" The first two points were re‑agitated and contested against the petitioners who were appellants and were defendants 4 to 6 in the trial Court. The remaining point was whether plots Nos. 745 and 741 belonged to Gupinath. The appellate Court below found that the appellants, namely, defendants 4 to 6, had already received a decision in their favour in the last‑named point. After considering all the points that had been raised by the petitioners (Defendants 4 to 6) who preferred the said appeal, the Appellate Court below dismissed the appeal and affirmed the judgment and decree passed by the trial Court. It is important to remember the following facts : Defendants 4 to 6 have fully agitated their case in the Court of Appeal below. Their main contentions were overruled by the appellate Court below and one of the points which was raised in their written statement, but which they could not agitate in the trial Court, was decided in their favour by the trial Court and was affirmed by the appellate Court below. It is, therefore, patent that a full adjudication has been obtained on all the points raised by the petitioners (defendants 4 to .6 in the trial Court and the appellants in the appellate Court below). They, thereafter, fell back on the second string to the bow which they had aimed at the plaintiff, namely, the application to the trial Court under Order IX, rule 13, Civil Procedure Code. That application, which was marked as, Misc. Case No. 198 of 1961, remained undisposed even after the appeal preferred by the applicants, namely, defendants 4 to 6, had been dismissed by the appellate Court below. The trial Court dismissed the said Misc. Case No. 198 of 1861 for default on the part of the petitioners. The petitioners attempted a second bite at the cherry in the above‑named Miscellaneous Case. They preferred an appeal against the dismissal of the Miscellaneous Case No. 198 of 1961 for non‑prosecution. The appeal was heard by a Subordinate Judge of Comilla. This 'appeal was marked as Miscellaneous Case No. 106 of 1963. Before the learned Subordinate Judge, who heard the aforesaid miscellaneous appeal, it was contended on behalf of the petitioners that the appeal was not maintainable. The appellate Court below upheld this contention and dismissed the appeal. Petitioners, thereafter, obtained the present Rule nisi from this Court. The application came up for hearing before a Single Bench of this Court and a reference was made for hearing of the same by a larger Bench. In the order of reference, passed by Sayem, J. on the 7th of July, a number of decisions were mentioned which were conflicting, particularly, a decision of a Single Bench of this Court, namely, Makhan Lal Dutta v. Joytun Bibi (16 D L R 139). The view in that case was that such application under Order 1X, rule 13, Civil Procedure Code, could be maintained even after the petitioner had preferred an appeal and obtained an adverse decree in the appeal. Sayem, J. was unable to agree with this view and this is the genesis of the hearing of the application before us. We would like to observe, in the first place, that the application before us has no merits whatsoever. The petitioners failed to turn up in the trial Court when the suit was being tried and preferred an appeal thereafter. They had a full hearing in the appeal and had agitated all the points which they could have agitated in the trial Court. After such a contest, in the appellate Court, the decree passed by the trial Court was affirmed, including that part of the decree which was in favour of the petitioners themselves (defendants 4 to 6). The petitioners, as stated above, fell back upon their original application under Order IX, rule 13, Code of Civil Procedure, which again was. dismissed for non-prosecution. It is significant to note that the petitioners again failed to turn up to press their application. They have treated Court proceeding in a non‑chalent and cavalier fashion. In the appeal against the dismissal of above‑mentioned miscellaneous case for non‑prosecution it was decided that an application under Order IX, rule 13, Civil Procedure Code; was incompetent under the aforesaid circumstances, an appeal against the ex parte decree passed in the appeal itself having been fully heard and disposed of, It was held that there could be no appeal against an order dismissing such miscellaneous application. We would like to observe that even if the contention of the petitioners, namely, that their application under Order IX, rule 13, was still maintainable in the trial Court, was acceptable, in the background of this case, we would be most reluctant to interfere with the orders passed by the Court below in view of the fact that the petitioners have been persistently guilty of laches in prosecuting their cases and also because of the fact that they had a full and complete opportunity of mooting the points raised by them in their written statement in the appeal filed by them. After having obtained an adverse decree the petitioners fell back upon a second round of an abortive fight as indicated above. We would, therefore, dismiss this application on its merits. This case, however, raises an interesting point, namely, whether an application, filed under Order IX, rule 13, Code of Civil Procedure, can be maintained in respect of a decree against which an appeal has been preferred and disposed of. Because of conflicting and somewhat rather irreconcilable decisions, this case has been referred to a larger Bench, namely, this Bench. We may note, at the very outset, that this question is not capable of a very simple answer. The point, of necessity, must be decided on the facts of each individual and particular case. An application under Order IX, rule 13, is sui generis and has no nexus with an appeal filed against an ex parte decree or with a review application, in respect of the same subject‑matter, under Order XLVII of the Code of Civil Procedure. These are independent and, often, concurrent remedies which are available to an aggrieved party. In the case of Makhan Lal Dutta v. Joytun Bibi the view taken is that an application under Order IX, rule 13, is maintainable even after the ex parte decree has been set at rest by the appellate decree. The contrary decision is based on the thesis that the original decree is merged in the appellate decree. Reliance for this proposition was placed upon a number of decisions cited at the bar, namely, Dhonai Sardar v. Tarak Nath Chowdhury (12 C L J 53), Mathura Prasad v. Ram Charan Lal (I L R 37 All. 208), Giridhari Lal v. Deputy Commissioner, Gonda (114 I C 319). The learned referring Judge, however, preferred the view expressed in the case of Subramanaia Iyer v. Varadarajulu Naidu (A I R 1927 Mad. 722) which has been followed in Sohan Singh v. Mool Singh (A I R 1934 Lah. 1016). There are, in fact, a whole series of cases taking the contrary view. See Ayodhya Kuar v. Durga Prasad (A I R 1923 Pat. 331). Many of them have been discussed in the case of Balbhim Rao Balassahib v. Alkh Murarilal (A I R 1954 M B 4). We have perused almost all the aforesaid decisions and it appears that we need hardly discuss them at any length. The principle that an original decree is merged in an appellate decree is well‑settled. But it does not solve the problem, which confronts us. All the cases which have re‑formulated the principle of merger of an original decree in an appellate decree have gyrated J round the principle laid down by the Privy Council in the case of Lala Brij Narain v. Kunwar Tejbal Bikram Bahadur (L R 371 A 70). It appears that, in these cases, insufficient notice has been taken of the fact that the observation of the Privy Council in Lala Brij Narain's case was in relation to the facts of that case. In that case, some mortgage decrees under sections 88 and 89 of the Transfer of Property Act had vested in the appellant and one Lachman Das. They were founded on a judgment, which directed the payment of a lump sum for interest in lieu of interest calculated at the contract rate. The decrees gave further lump sum for interest pendente lite and also future interest till repayment. The decree under section 88 was, affirmed by the High Court. The respondent paid into Court the full amount of the decree and obtained from the First Court an order to amend them so as to bring them into accord with the judgment. On separate applications for revision by the appellant and Lachman Das the High Court set aside the order of amendment so far as Lachman Das's interests were concerned on the ground that the First Court had no jurisdiction to amend a decree which had been affirmed in appeal, and refused revision so far as the appellant was concerned. Their Lordships of the Privy Council merely reiterated the order of the High Court granting leave to appeal to the Privy Council holding that the amendment was equally ineffectual in the appellant Brij Narain's case and ought not to have been allowed to stand. The case is only an authority for the proposition that the First Court's decree becomes merged into that passed by the appellate Court. But this case cannot be the basis for the proposition that no application under Order IX, rule 13, of the Code of Civil Procedure can be made after an appeal from the original decree has been disposed of. It is true that the original decree loses its identity in the' appellate decree which supplants the original decree and wipes out its existence. But, the right conferred under Order IX, rule 13, is of a different nature, namely, a right by a party who, has not at all been heard in respect of the decree that bas been passed against such party to apply to the trial Court to set aside tie decree. It is a right specially conferred by law without which no such, right could have existed. It is a statutory relief of a special kind arising out of the mandate of law. ' Another line of argument, namely, that when an appeal has been filed against a decree, the trial Court loses seisin of the case and can no longer adjudicate upon it, is a proposition which ' is untenable on the authority of the decision in the case off Mellish v. Richardson (1832 E R 111). This case has been discussed in the case of Kumudnath Ray Chowdhury v. Jatindra Nath Chowdhury ((1911) 38 Cal. 394). The case of Mellish v. Richardson has decided the question whether a Court, which would otherwise have the authority to amend the judgment, may do so even after an appeal has been filed. It was held that the Court could do so under a special power conferred by law. It, therefore, follows that just because an appeal has been filed and, on the same principle, because an appeal has been disposed of with the passing of an appellate decree, it would not be correct to say that the trial Court has no jurisdiction whatsoever to entertain an application under Order IX, rule 13, of the Code of Civil Procedure. We may take, for example, the case of a defendant against whom plaintiff perpetrated fraud by suppressing summons and all processes in respect of the suit, with the result that plaintiff, upon the fraud perpetrated by him, had succeeded in obtaining an ex parte decree against the defendant who had no knowledge of the suit whatsoever. The defendant, after obtaining informa?tion with regard to the ex parte decree, may, within the period of limitation prescribed by law, file an application under Order IX, rule 13, a remedy which has been expressay conferred upon him by law. This remedy is independent of any other kind of remedy which may be available to him. In the case which we have taken into supposition if the plaintiff himself files an appeal against the ex parte decree obtained by him and the appeal is dismissed, can it be said that the appellate decree, which was undoubtedly passed on the appeal filed by the plaintiff' himself, would deprive the defrauded defendant to prosecute his applica?tion under Order IX, rule 13, Civil Procedure Code? The answer, patently, is, that the trial Court would, undoubtedly, be competent to adjudicate upon such an application and to give relief to the defendant even when appeal preferred by his adversary, namely, the plaintiff, has been disposed of. It should be remembered that, in the circumstances mentioned above the decree passed against the defendant amounted to a nullity, that is to say, it should be deemed as if it never existed in the eye of law. It is difficult to conceive how something which has been non‑existent could be considered to have been merged in a later decree passed by a superior appellate tribunal. Something, which was non‑existent must continue to remain non‑existent. But the real point is, that the petitioner, in the aforesaid fictitious case, never preferred the appeal himself and never had the chance of an adjudication upon the vital point, namely, that summonses in respect of the suit were fraudulently suppressed by the plaintiff himself. This point he can place before the trial Court which is the only forum to which he has taken recourse in the fictitious case, which we had taken into supposition. The answer would not be different if an ex parte decree is passed against a number of defendants and some of the defen?dants prefer an appeal while some others against whom such ex parte decree had been passed do not file an appeal. If the defendants, who did not prefer an appeal, merely filed an application in the trial Court under Order IX, rule 13, can it be argued that the defendants who did not file the appeal and who were only applicants before the trial Court under Order IX, rule 13, cannot be allowed to agitate the point before the trial Court that summonses in respect of the suit were suppressed so far as they were concerned? In the appeal filed by their co?defendants they could not agitate this point even if they were joined as parties to the appeal. Would they be debarred from saying so in the application filed in the trial Court just because, the appeal filed by their co‑defendants had fructified in affirming the decree passed by the trial Court? Obviously, the answer is that the trial Court would be competent to entertain the application. This is again on the principle clearly enunciated in the case of Mellish v. Richardson according to which such remedies are subject to remedies conferred by law and has a separate life of its own. The volume of cases decided by Courts of this sub‑continent is sharply divided but it is substantially in favour of the view that an application under Order IX, rule 13, would not be maintainable because, after an appeal, the original decree would be merged in the appellate decree. We have sufficiently indicated above that the doctrine of merger of the original decree in the appellate decree is not a ' very helpful doctrine and does necessarily become the ratio in deciding the issue which‑ confronts us. In our opinion, an application under Order IX, rule 13, being a remedy, which is sui generis, is maintainable on the strength of the very pro?visions of the law which created the remedy. It is not dependent upon any other extraneous consideration. On principle as' well as on authority, it seems, that the trial Court was competent to entertain the application, But, whets the party making the application under Order IX, rule 13, has had a full chance of agitating the points which he intended to canvass in the trial Court, no life can subsist in his application under Order IX, rule 13, for the simple reason that he has had his case fully heard and decided by a competent Court, namely, the appellate Court, the Court sitting in appeal over the original decree. In such a case petitioners' application should and ought to be dismissed on its merits. The matter should end there. This is exactly what has happened in the present case. The view that we have taken amounts to this that although an application under Order IX, rule 13, is maintainable, yet when the points, involved in the suit, have been re‑agitated by a party by way of an appeal and the, appeal has been decided, the original decree is not merely merged in the appellate decree, but the patent fact which, of necessity, must stare one in the face is, that to allow the party the luxury of further prosecuting his application under Order IX, rule 13, would be unconscionable. In such an eventuality, petitioners' prayer under Order IX, rule 13, would not be granted. We prefer to leave the case here and base our decision on the view expressed above, namely, on the merits of the case itself. The Rule is, therefore, discharged. ‑Having regard to the intricacy of the point mooted before us, we make no order as to costs of this application. ABDULLA, J.‑I agree. K. B. A. Rule discharged.