Kendall, J.:— This is a defendant's application for the revision of an order of the Judge of the small cause court of Agra, disallowing his application under order IX, rule 13 of the Civil Procedure Code to set aside an ex parte decree passed against him. A suit for money had been brought against the applicant in the small cause court, and as he is a resident of Ajmere, service of summons on him was allowed to be effected by publication in the “Leader”, and an ex parte decree was given against him. Subsequently the plaintiff applied in the High Court for a revision of this ex parte decree on the ground that he had been allowed no future interest. Notice of this application was admittedly served on the applicant, who appeared through counsel in the High Court and opposed the application, but the High Court allowed the revision. After that the defendant made this application to the Judge of the small cause court to set aside the original ex parte decree.
It appears to me to be clear that the original ex parte decree of the small cause court had merged in the decree given in revision by the High Court. In the case of Mathura Prasad…(Applicant); v. Ram Charan Lal…(Opposite Party).*(1) it was held that when the High Court had once confirmed a decree on appeal, it was not open to the court which passed the decree to entertain an application to set the decree aside. The Bench which disposed of that case did not discuss all the authorities on the question raised, but they remarked that “all the authorities seem to be agreed that when a decree has been passed by the superior court, the lower court cannot alter or amend its decree.” In that case, as in the present one, the equities seemed to be in favour of the applicant, for the circumstances suggest here that the applicant has not been able to obtain an adjudication on a good prima facie case. But the decision of the court was: “As matters now stand nothing can be done; the appeal must be dismissed.”
An attempt has been made on behalf of the applicant to distinguish between an appellate decree of the High Court and an order passed by the High Court in revision, but I think that there is no real difference. A “decree” as defined in section 2 of the Civil Procedure Code means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit; and an order passed in revision undoubtedly comes within this definition; and moreover I have ascertained that in such cases a decree is invariably prepared in the High Court. It is necessary to make this point clear, because the case law on the subject to which I have been referred deals with appellate decrees and not with orders passed in revision.
In the case of Brijalall Singh v. Chowdhury Mahadeo Prosad there is some authority for holding that the trial court still had control over its ex parte decree in spite of the fact that there had been an appeal in the suit end an appellate decree had been passed by the High Court. This decision is of 1911; and it is to be observed that the parties who applied to set aside the ex parte decree against them had been made respondents to the appeal in the High Court, but as no relief was claimed against them, they did not make appearance in the appeal and it had not been investigated whether they had any notice of the appeal. The circumstances are therefore clearly distinguishable from those in the present case where the applicant was the sole judgment-debtor in the ex parte decree and had not only received a notice of the application for revision in the High Court but had made appearance and had contested the application. Nor has this decision of the Calcutta High Court been definitely accepted as a good law in this Court. In the case of Gajraj Mati Tiwarin v. Swami Nath Rai(2) a Bench of this Court had to consider the case of a person who was originally a party to a suit but who was not made a party to the appeal, and there had been no adjudication in his case, and the question was whether the decree of the court of first instance merged in that of the court of appeal and it was held that it did not merge. As the facts in that case are distinguishable from those in the present one, the decision cannot be relied on as authority to support the application, but there are some passages in the judgment of Sundar Lal, J., which bear on the present case. After referring to the case of Brijalall Singh v. Chowdhury Mahadeo Prosad that learned Judge remarked at page 27: “It is not necessary for me to go so far as that, but the case is an authority for holding that when they are not made parties to the appeal they are not precluded from applying under section 108 of the Code.” And later at page 31: “I am inclined to think that where the applicant is no party to the appeal either as appellant or respondent, and the appellate court has not adjudicated upon his case, the decree of the court of first instance does not merge in that of the court of appeal. Whether the decree of the court of first instance has merged into that of the court of appeal will largely depend upon the facts of each case.” It is upon this last passage that the learned counsel for the applicant relies, and he seeks to show that in the present case the decree of the small cause court had not merged in that of the High Court. The Calcutta case is authority for holding that even where a party has been made a party to the appeal, so long as no relief is claimed against him in appeal the decree against him does not merge. The Allahabad case is authority for holding that where a party is a party to the original suit but not a party to the appeal, the original decree against him in the suit will not merge in the appellate decree of the High Court. In a later case, Mirza Abdullah Beg v. Ramzan Khan, a single Judge of this Court, now the Chief Justice, held that where a party claiming relief had been made a pro forma respondent in the appeal, he could apply to the trial court to set aside the ex parte decree against him even while the appeal was pending in the High Court, but a distinction was made between an appeal pending and an appeal decided, and this case is no authority for holding that where the appellate court had decided the appeal and given a decree the trial court still had jurisdiction to entertain an application by the applicant for the setting aside of the ex parte decree. This distinction is also made by the Bench in the case of Mathura Prasad…(Applicant); v. Ram Charan Lal…(Opposite Party).*, and the opinion was expressed that if the applicant had applied to set aside an ex parte decree in the trial court while the appeal was still pending in the High Court he might have obtained a relief. On behalf of the applicant I have also been referred to a decision of a single Judge of the Madras High Court in the case of Subramania Iyer v. Varadarajulu Naidu, in which the learned Judge appears to have decided that after the decision of an appeal in the appellate court an application will be to the trying court to entertain an application to set aside an original ex parte decree. He was relying on an earlier decision of a Bench of the Madras High Court in the case of Kristnama Chariar v. Mangammal(3), but I cannot find in that decision any authority for the proposition of law which he has recorded. The Bench indeed remarked at page 96: “The mere fact that a matter is litigated both in the court of first instance and again, though only in part, in the court of appeal, cannot convert or split the suit into two, and there can be only one final decree in that suit, viz., the decree of the court of appeal.”
In the present case it is possible to speculate what the result would be if the application were to be allowed and the trial court were to entertain the application to set aside the ex parte decree. Supposing it were to decide that the ex parte decree ought to be set aside and therefore to pass an order setting it aside, and subsequently to dismiss the plaintiff's suit, what then would happen to the decree of the High Court in which the plaintiff's suit was decreed including future interest which had not been decreed in the trial court? That decree would still be capable of execution, and the proceedings in the trial court under order IX would be absolutely infructuous.
I have no doubt, therefore, that the application must fail. There is only one decree, viz., that of the High Court, and the original ex parte decree has been merged in this and has passed beyond the control of the trial court. I have come to this conclusion somewhat reluctantly, as it appears to me that it is a pity that the applicant has not been able to obtain a decision on his application, but the proper course apparently was for him to apply in the High Court for a stay of the proceedings in revision until he had obtained a decision from the trial court on his application under order IX, rule 13. He did not take the right step at the right time and has suffered in consequence. The application therefore fails and is dismissed with costs.
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