1. This is an appeal from an order of the 2nd SubordinateJudge of Chittagong refusing the Petitioners application to set aside an exparte decree under Or. XLI, r. 21 of the Civil Procedure Code. The learnedSubordinate Judge decided that he had no jurisdiction to entertain theapplication. It appears that the Plaintiff brought a suit for possession ofcertain land against five Defendants, basing his title on a lease fromDefendant No. 5, and alleging that Defendants Nos. 1 to 4 were trespassers. TheCourt of first instance found that the land belonged jointly to all fiveDefendants, and on 14th February 1908 gave the Plaintiff a decree for one-fifthof his claim, and for possession jointly with Defendants Nos. 1 to 4. ThePlaintiff appealed against the decree making all the Defendants-Respondents butDefendant No. 1 alone appeared. On 22nd December 1908, the lower AppellateCourt varied the decree of the Court of first instance and gave Plaintiff adecree for the whole land. That decree was ex parte so far as Defendant No. 2(the Petitioner-Appellant before us) was concerned Defendant No. 1 preferred anappeal to this Court making the Plaintiff alone Respondent, and his appeal wassummarily dismissed under Or. XLI, r. 11 on 13th May 1909. On 28th July 1909,Defendant No. 2 applied to the lower Appellate Court under Or. XLI, r. 21 for are-hearing of the appeal in that Court as against him and his application, aswe have said, has been dismissed. The sole point for our determination iswhether the lower Appellate Court had jurisdiction to entertain theapplication. In the petition of objection filed by the Plaintiff the onlyobjection taken to the jurisdiction of the lower Appellate Court was that byvirtue of the appeal by Defendant No. 1 to this Court and its dismissal underOr. XLI, r. 11, the decree of the lower Appellate Court had become the decreeof this Court, and that it was therefore this Court alone which could entertainthe application of Defendant No. 2. From the judgment of the 2nd SubordinateJudge it appears that there was a second objection, namely, that the lowerAppellate Court which passed the ex parte decree was the Court of theAdditional Subordinate Judge which has since been abolished and not that of theSubordinate Judge. We may say at once that there is no force in the objectionand it has not even been argued before us. Turning to the real point in thecase we are of opinion that the various decisions dealing with amendment ofdecrees and reviews of judgment, which have been cited in argument, are not ofmuch assistance. They turn upon a different state of facts and upon differentsections of the Civil Procedure Code. Somewhat more in point are those caseswhich decide that an original Court can entertain an application to set asidean ex parte decree even where the applicant has preferred an appeal againstthat decree to a higher Court; see Damodar Manna v. Sarat Chandra 13 C.W.N. 846(1909) and Kumud Nath v. Jotindra Nath 13 C.L.J. 221 (1911). In those cases,however, the application to set aside the ex parte decree was made while theappeal against it was pending and not finally disposed of. The case of DhonaiSardar v. Tarak Nath 12 C.L.J. 53 (1910) more closely resembles the presentinasmuch as the application there was made after the disposal of the appealpreferred by the other Defendants. At the same time it is not clear from thereport or from the file of that case in this Court, which we have examined,that Defendant No. 7 in that case was not made a party Respondent to the appealof Defendants Nos. 1 and 4 which was dismissed. In the appeal before us it iscertain that the present Appellant was no party to the appeal of his brotherDefendant No. 1 even in name so that that case may be distinguished on thatground. If it were not distinguishable, it might have been necessary toconsider whether the point should not be referred to a Full Bench : for, withall respect to the learned Judges who decided that case we entertain doubts asto the correctness of their conclusion. It appears to proceed upon the groundthat because the Appellate Court could under sec. 544 of the Civil ProcedureCode 1882, on an appeal by two of the Defendants, have reversed the decreeappealed from in favour of all, it must have acquired jurisdiction over theentire subject-matter and was competent to come to a determination in regard tothe same as between all parties to the suit, and that that jurisdictioncontinued throughout. This, however, seems to lose sight of the fact that thepower to pass a decree in favour of parties who are absent and who have notasked for such relief, was expressly conferred by sec. 544 of the CivilProcedure Code, 1882, now represented by Or. XLI, r. 4, and supplemented by r.33. There can after all be no harm in deciding in a mans favour, even in hisabsence and without any direct request by him. But the converse does notnecessarily follow, and indeed it is a well-established principle of ourjurisprudence that no person is bound by a decree passed against him in hisabsence and against which he has had no opportunity of showing cause.

2. Upon the undoubted facts of the present case it isdifficult to see how the decree of this Court to which the present Appellantwas not a party even by name and of which he had no notice can be said to be adecree against him.

3. As a matter of convenience it is obvious that the lowerAppellate Court is in a much better position to deal with the presentapplication than this Court as the default in appearance took place in thatCourt. For these reasons we think that the learned Subordinate Judge had jurisdictionto entertain the application, and we accordingly set aside his order ofdismissal, and remand the case to the lower Court for hearing and disposal ofthe application on the merits. The Appellants costs of this appeal must be paidby the Respondent. We fix the hearing fee at two gold mohurs.

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Intu Meah vs. DarBaksh Bhuiyan (24.04.1911 - CALHC)