1. This Appeal is directed against an order by which theCourt below has refused to entertain an application to set aside an ex partedecree on the ground that it had no jurisdiction to set aside that decree. Thecircumstances under which the decree in question was made and the applicationpresented to have it set aside are not disputed. The Plaintiff, now Respondentbefore us, took a mortgage from one Bishnath Singh and his son Debi Pershad. Hesued to enforce his security after the death of the father against Debi Pershadand his four sons and two nephews. Debi Pershad was the first Defendant. Thenext four Defendants were his sons and the last two Defendants were the sons ofThakur Pershad, the brother of Debi Pershad. The claim was resisted by thesixth and seventh Defendants alone and the suit proceeded ex parte against theother five Defendants. In the result, a decree was made on the basis of themortgage against the first five Defendants alone. That decree directed the saleof the mortgaged property to the extent of the two-thirds share belonging toBish-nath and Debi Pershad. It was further declared that if upon the sale ofthis two-thirds share the mortgage debt was not satisfied, the decree-holderwould be entitled to proceed personally against all the seven Defendants. ThePlaintiff preferred an appeal against that decree to this Court. His appeal wasdescribed on the face of the memorandum as an appeal against only that portionof the decree which declared that an one-third share of the mortgaged propertywas not liable to be sold. In other words, the appeal was directed against thesixth and seventh Defendants alone. The other Defendants were joined as partyRespondents to the appeal but no relief was claimed against them, and they didnot enter appearance in the appeal. Indeed, it has not been investigatedwhether they had any notice of the appeal. The sixth and seventh Defendants,who were the principal Respondents, entered appearance and filed a memorandumof cross-objections to the effect that there should not have been any personaldecree against them. The appeal and the cross-objections were both successful.This Court held that the Plaintiff was entitled to a mortgage decree againstthe whole property, but that the sixth and seventh Defendants were notpersonally liable under the decree. When the decree came to be drawn up, it wasmade self-contained and the provisions of the decree of the original Court, inso far as they related to the first five Defendants, were reproduced andincorporated therein.

2. The first five Defendants now apply to have the ex partedecree set aside. Their claim is resisted by the Plaintiff on the ground thatthe Subordinate Judge has no jurisdiction to entertain the application, becausethere is no longer any subsisting decree of his Court which can be set aside byhim as an ex parte decree. The Subordinate Judge has given effect to thiscontention, and, as already stated, has refused to entertain the application.

3. In Appeal it is contended that the Subordinate Judge hastaken an erroneous view of the law applicable to this case and that he shouldhave considered the application to set aside the ex parte decree on the merits.In our opinion, there is no answer to this argument. The obvious test to beapplied to determine whether the Subordinate Judge has jurisdiction toentertain the application to vacate the ex parte decree, is, whether in spiteof the appeal presented to this Court, there is still a subsisting ex partedecree over which the Subordinate Judge has control. The answer to thisquestion depends upon the scope of the appeal presented to this Court by thePlaintiff. As we have already explained, that appeal was directed solelyagainst the sixth and seventh Defendants. In other words, it was an appealdirected against the decree of the original Court in so far as that decree hadbeen made on contest. The Plaintiff was satisfied with the decree he hadobtained ex parte against the first five Defendants and it was not necessaryfor him to attack that portion of the decree by way of appeal to this Court. Hedid not do so nor did these Dependants prefer an appeal. In fact their case newis that they were not aware of the proceedings in the suit till within a shorttime of the application made to set aside the ex parte decree. Thecross-objections filed by the sixth and seventh Defendants, who wereRespondents in this appeal, only attacked so much of the decree of the Court offirst instance as made them per-sonly liable for the balance of thejudgment-debt that might remain after the sale of the two-thirds share of themortgaged property. The scope of the appeal was consequently limited to thequestion which arose between the Plaintiff and the sixth and seventhDefendants. The questions in controversy between the Plaintiff and the firstfive Defendants were not raised in the appeal, and never came under thejudicial consideration of this Court. Under these circumstances, the viewcannot possibly be supported that the effect of the decree of this Court was tosupersede the decree of the Court of first instance in so far as it had beenmade ex parte against the first five Defendants. That decree was not affirmed,modified or reversed in so far as these Defendants were concerned, although, asa matter of form, one self-contained decree was prepared in this Court. Itcannot thus be maintained that the effect of that decree was to merge the exparte decree therein; in cases of this description, we must look rather to thesubstance than to the form of the proceeding.

4. It has been argued, however, by the learned Vakil for theRespondents that the view we take is opposed to the decision of this Court inMon Mohini Chowdhuri v. Nara Narayan Ray per 4 C.W.N. 456(1899) Dhonai Sardarv. Taraknath Chowdhury 12 C.L. J. 53 (1910) and Zimutunnessa Bibi v. MuddunMohan Pal 22. W.R.537 (1874) Reliance has also been placed upon the decision ofthe learned Judges of the Madras High Court in Sankara Bhatta v. Subraya BhattaI. L. R. 30 Mad. 535 (1907) The cases upon which reliance is placed are,however, clearly distinguishable.

5. In the case of Mon Mohini Chowdhurani v. Nara Narayan Ray4 C. W. N. 456 (1899, a suit had been brought against a large number ofDefendants, two of whom alone entered appearance and contested the claim of thePlaintiff. The suit was decreed by the Court of first instance, whereupon thecontesting Defendants preferred an appeal which ultimately proved unsuccessful.An application was subsequently made by the other Defendants against whom thedecree had been made ex parte to set aside that decree. That application wasgranted. The first two Defendants, who had lost after contest, then applied tohave the decree set aside in so far as they also were concerned. The Court offirst instance granted the application. It was ruled by this Court that underthe circumstances, so far as these Defendants were concerned, the decree of theoriginal Court had merged in the decree of the Appellate Court, and that,consequently there was no decree in existence over which the Court of firstinstance still retained control.

6. In the second case, Dhonai Sardat v. Jaraknath Chowdhury12 C L. J. 53 (1910) a decree was made ex parte against several Defendants, twoof whom alone preferred an appeal. The decree, however, was indivisible; andupon appeal the whole of the subject-matter of the litigation was laid beforethe Appellate Court. In other words, the appeal, although preferred by two ofthe Defendants alone, was directed against the entire decree. Under thecircumstances, this Court held that the effect of the decree of the AppellateCourt was to, supersede the original decree. It is manifest that this case isdistinguishable upon an essential point from the case now before us. As alreadyexplained, the appeal was restricted here to the question which arose betweenthe Plaintiff and the sixth and seventh Defendants, namely, the right of thePlaintiff to proceed in execution of the mortgage decree against the one-thirdshare of the property which belonged to these Defendants,. It is consequentlyunnecessary for us to consider whether the decision in Dhonai Sirdar v.Taraknath Chowdhury 12 C. L. J. 53 (1910), can be supported on principle. Weneed only mention that the case has been doubted lntu Mea v. Jerbux Bhuyan 15C. W. N. clxxx (1911). and has been distinguished [Kumud Nath Roy Chowdhury v.Rai Jatindra Nath Chowdhury 13 c. L. J. 221 (1911).

7. The case of Zimutunnessa Bibi v. Muddun Mohan. 22 W. R.637 (1874., is also clearly distinguishable. There a suit was brought by thePlaintiff against three Defendants The suit was decreed as against one Defendantonly and it was dismissed as against the others. Upon appeal preferred by thePlaintiff, a decree was made ex Parte against the Defendants who had beensuccessful in the original Court. They then applied to the Court of firstinstance to set aside the ex parte decree. It was ruled that there was no exparte decree of the Court of first instance which could be set aside by thatCourt. As a matter of fac, the decree of that Court was one of dismissal so faras the applicants were concerned and the only ex parte decree in exigency wasthe one made by the Court of Appeal. The only Court that could consequentlydeal with the application, was the Court of Appeal.

8. Two other cases were relied on by the Subordinate Judgein support of his view, namely, Mahammad Sulaiman Khan v. Mahammad Vat Khan (I. L. R. 11 All. 267 (1888) and Sri Go-bind Sing v. Gangatri Pershad Singh 6 C.L. J. 542 (1907). These cases also are clearly distinguishable, because theymerely affirm the doctrine that after the decree of the original Court hasmerged in the decree of the Court of Appeal, the only Court which is competentto entertain an application for amendment of the decree is the Court of Appeal.That the doctrine is well-founded on principle cannot be disputed; and it is nowsupported by the decision of their Lordships of the Judicial Committee in BrijNarayan v. Tejpal Bikram Bahadur I. L. R. 32 All. 295 (1910). Reference wasalso made to the case of Sarat Chandra Dhal v. Damodar Manna 12 C. W. N. 885(1908), which was subsequently affirmed on appeal under sec. 15 of the LettersPatent. [Damodar Manna v. Sarat Chandra Dhal 913 C. W. N. 846 (190).. The factsof that case, however, as explained in the decision of this Court in the caseof Kumud Nath Roy Chowdhuty v. Rai Jatindra Nath Chowdhury 13 C L. J. 221 0911,do not furnish any analogy to the facts of the present case.

9. In so far as the decision of the learned Judges of theMadras High Court in the case of Sankara Bhatta v. Subraya Bhatta I. L. R. 30Mad. 535 (1907 is concerned we need only say that it appears to lay down toobroadly the proposition that as soon as an appeal has been preferred against adecree, the authority of the original Court to deal with that decree iscompletely taken away. As explained in Kumud Nath Roy Chowdhury v. Rai JatindraNath Chowdhury 13 C L. J. 221 0911, that position cannot be maintained eitheron principle or on the authorities.

10. The result is that the view taken by the Court belowcannot be maintained. The Appeal is therefore allowed, the order of the Courtbelow set aside, and the case remanded in order that the application to setaside the ex parte decree may be considered on the merits. The Appellant isentitled to the costs of this Appeal. We assess the hearing-fee at three gold mohurs.We may add that it has been argued by the learned Vakil for the Respondentsthat if this application is ultimately successful, a question may arise whetherthe decree should be set aside also as against the sixth and seventh Defendantsand he has contended that in view of the decision of this Court in Mon MohiniChowdhurani v. Nara Narayan Ray 4 C. W. N. 456 (1899) the Court below cannotpossibly set aside so much of the decree as has been dealt with by this Courton appeal. It is not necessary, however, at the present stage, to consider thisquestion. Whether the decree as against the sixth and seventh Defendants, can,under any circumstances, be set aside, and, if so, by which Court, must be leftopen for consideration, when that contingency arises.

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Brijalall Singh vs. Mahadeo Prosad and Ors. (01.06.1911 -CALHC)