1. We are invited in this Rule to discharge an order bywhich the Court of first instance refused an application to set aside an exparte decree. The ex parte decree was made on the 29th June 1912. On the 30thJuly 1912, the petitioners applied under rule 13 of Order IX of the Code of1908 to set aside the ex parte decree. On the next day they preferred an appealto the District Judge against the ex parte decree, as they were entitled to dounder sub-section 2 of section 96 of the Code. On the 14th December 1912 theapplication to sot aside the ex parte decree was taken up for disposal. TheCourt dismissed the application (sic) ground that as an appeal had beenpreferred against the ex parte decree, the power of the Court, which had madethe ex parte decree, to set it aside had terminated. The petitioner appealed tothe District Judge against this order under clause (d), rule 1, of Order XLIII.The District Judge dismissed the appeal on the ground that if the petitioner hadany grievance, he would have his remedy in the appeal against the ex partedecree and it was consequently superfluous to take evidence to determinewhether there were good grounds to set aside the ex parte decree. We are nowinvited to hold that the primary Court refused to exercise a jurisdictionvested in it by law when it refused to entertain the application to set asidethe ex parte decree. We are of opinion that this contention is well-founded.

2. It cannot be disputed that the Court had jurisdiction toentertain the application when it was made on the 30th July 1912. On whatprinciple can it be held that such jurisdiction was destroyed as soon as anappeal was preferred to the District Judge against the ex parte decree Theproceeding to set aside the ex parte decree and the appeal to the superiortribunal are entirely distinct in their scope and purpose. If the applicationto set aside the ex parte decree is successful, the suit will stand revived andthe defendant will have an opportunity to establish his defence on the merits.In the appeal, he is restricted to the materials already on the record broughtin by the plaintiff behind his back and without his knowledge. He can at leastshow that the materials on the record do not justify the decree made in favourof the plaintiff. There is thus no reason apparent why the defendant should nothave a two-fold remedy. We are not prepared to adopt the view taken in Sankarav. Subrayar 30 M. 535 : 17 M. L. J. 436. that as soon as an appeal has beenpreferred, the Appellate Court has seizin of the suit and the jurisdiction ofthe primary Court is destroyed, with the result that the Appellate Courtthereafter becomes competent to deal with an application to set aside the exparte decree under section 107 read with Order IX, rule 13. The argument isobviously fallacious, because although the Appellate Court acquiresjurisdiction to confirm, reverse or modify the decree, still the decreecontinues to be the decree of the primary Court till it has been confirmed, reversedor modified by the decree of the Appellate Court. Order IX, rule 13, authorisesthe Court to set aside an ex parte decree made by itself. Section 107,sub-section 2, read with Order IX, rule 13, may be taken to authorise anAppellate Court to set aside an ex parte decree made in the exercise of itsappellate jurisdiction (as expressly laid down in Order XLI, rule 21), but itdoes not authorise an Appellate Court to entertain an application to sot asidean ex parte decree made by a Subordinate Court. We are of opinion that theoriginal Court was not deprived of its jurisdiction to deal with theapplication to set aside the ex parte decree on the merits, merely because anappeal against the ex parte decree was subsequently preferred to the DistrictJudge. The view we take is supported by the cases of Sarot Chandra v. Damodar: 12 C. W. N. 885. Damodar v. Sarat Chandra : 3 Ind Cas. 468 [LQ/CalHC/1909/162] : 13 C. W. N. 846. and Kumud Nath v. Jatindra Nath: 9 Ind. Cas. 189 [LQ/CalHC/1911/20] : 38 C. 394 : 13 C. L. J. 221 : 15 C. W. N.399..

3. The result is that this Rule is made absolute and theorders of the Courts below are discharged. The application under Order IX, rule13, presented on the 30th July 1912 will be restored and heard on the merits inthe presence of both parties. The petitioner is entitled to his coststhroughout these proceedings. We assess the hearing fee in this Court at twogold mohurs.

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Shajan Bibi vs.Saffiruddin (16.12.1913 - CALHC)