In Re: Devarakondah Venkata Subbaramiah alias Subbaramiah and Others

Kuppuswami Ayyar, J.—The only point that arises for consideration in this petition is whether after an appeal against an ex parte decree has

been dismissed, it would be open to the trial Court to pass an order on a petition to set aside the ex parte decree filed before the appeal was

heard. The learned Subordinate Judge has held that he had jurisdiction to set aside the decree and following the ruling of this Court in Abdul Kadi

Rowther and Another Vs. Uthumansa Rowther, held that he had jurisdiction to pass an order on the petition and set aside the ex parte decree. It is

urged before me that the observations of the Privy Council in Brij Narain v. Tejbal Bikram 32 ALL. 295 were not brought to the notice of the

Judge who decided that case and that if those observations are borne in mind it could not be said that the ruling of this Court is correct. In that case

the question was whether the original Court had jurisdiction to amend the decree after the matter was taken in appeal and the appellate Court

passed a decree. That is altogether a different matter and the question before me was not the subject-matter for decision in that case. Nor has the

decision in Venugopal Mudali v. Venkatasubbiah Chetti AIR 1916 Mad. 883 any application to the facts of this case. As a matter of fact this

question was considered by a Bench of this Court in Palaniappa Chetti v. Subramania Chetty AIR 1922 Mad. 33 referred to by Curgenven J. in

his judgment in Abdul Kadi Rowther and Another Vs. Uthumansa Rowther, and it was pointed out by that Bench that where a defendant has been

a party to the appeal which was disposed of, his application to set aside the ex parte decree would not lie in the appellate Court but in the first

Court. In the light of these two rulings of this Court, I do not think I will be justified in admitting this revision petition. The petition is accordingly

dismissed.