Kartar Singh vs Jagat Singh and Others

D.K. Mahajan, J.—This petition for revision came up for hearing before Gurdev Singh, J., on 2nd December, 1969. The learned Judge, in view of the conflict of authority, directed that the petition be heard by a larger Bench. The petition then came up for hearing before Pandit and Sandhawaha, JJ.. on 19th November. 1970. The learned Judges formicated the following two questions of law:

(1) Whether the trial Court has jurisdiction to entertain and allow an application under Order 9 Rule 13 of the Code of Code of Civil Procedure, for setting aside an ex-parte decree subsequent to the decision of an appeal preferred against such a decree after due service of the parties to the appeal;

(2) Whether the answer to question No. (1) would be affected by the fact that the appellate Court has or has not, adjudicated on the rights and liabilities of the person who moves for the setting aside of the ex-parte decree against him?

and directed that the same be settled by a larger Bench. That is how the m?Uer has been placed before us.

At the time when the reference order was passed, the decision of the Supreme Court in Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, , though reported, was not brought to the notice of the Division Bench. In our opinion, this decision really concludes the matter. The narration of facts will bear this out.

Jagat Singh is a refugee from West Pakistan. He was allotted land in village Kala Nangal in lieu of the land he left in Pakistan. Some of his land in Pakistan was under mortgage with Muslims. The Rehabilitation Department demanded payment of the mortgage money at the flat rate of Rs. 450 per standard acre for the area allotted in lieu of the mortgaged area. This amount was not paid, and his allotment was cancelled. After the cancellation of the allotment, some land was allotted to Surat Singh, Gurcharan Singh, Apar Singh. Ajit Singh and Sarup Singh sons of Udham Singh and the remaining and was allotted to Harnam Kaur widow of Havela Singh. The sons of Udham Singh sold the land which had been allotted to them to Bachan Singh. Harnam Kaur sold the land allotted to her to Kartar Singh. Jagat Singh filed a suit for possession of the land allotted to him on the allegation that the order of cancellation was illegal and void. In this suit, the sons of Udham Singh were impleaded as Defendants 2 to 6. Harnam Kaur as Defendant 8, Bachan Singh and Kartai" Singh as Defendants 7 and 9, respectively, and the Collector was impleaded as Defendant No. 1. The service on the Defendants was affected under Order 5, Rule 20, Code of CPC and ex-parte proceedings were taken against them. The trial Court decreed the suit ex-parte against Kartar Singh and dismissed the suit against Bachan Singh. On the 27th July, 1968, Kartar Singh and Bachan Singh made an application under Order 9, Rule 13. Code of Civil Procedure, for setting aside of the ex-parte decree. On the 7th August. 1968, Jagat Singh who was dissatisfied with the decision of the trial Court as to the dismissal of his suit against Bachan Singh, filed an appeal in the Court of the District Judge, Gurdaspur. This appeal was entrusted to the Additional District Judge, Gurdaspur. The transferors of Bachan Singh and Kartar Singh were served. Personal service was also effected on Bachan Singh and Kartar Singh. Bachan Singh and Harnam Kaur engaged Shri Wazir Chand, Advocate to represent them in the appeal. The Collector was also represented. Proceedings were taken ex-parte by the Additional District Judge against the remaining Defendants. The learned Additional District Judge allowed the appeal on 26th of May, 1969, with the result that the Plaintiff''s suit was decreed in its entirety excepting that in regard to Khasra No. 24/1 of Rectangle No. 15, the decree was restricted to 6 Kanals, the total area of this Khasra number being 7 Kanals, 11 Marias. Against the decision of the Additional District Judge, Regular Second Appeal No. 998 of 1969 has been preferred to this Court and is still pending.

The application under Order 9, Rule 13, Code of Civil Procedure, for setting aside the ear-parte decree came up for hearing before the Subordinate Judge, II Class, Gurdaspur, on 17th July, 1969. The learned Judge held that the decree which was sought to be set aside having merged in the decree of the Additional District Judge there was nothing which he could set aside. In this view of the matter he rejected the application. Against this order an appeal was preferred to the District Judge, Gurdaspur, by Kartar Singh alone. Jagat Singh Plaintiff, Defendants 2 to 6 in Jagat Singh''s suit, Hamam Kaur, the Collector and Bachan Singh were made Respondents. This appeal was rejected in limine by the learned District Judge on 18th of August, 1969. The learned District Judge relied on Balbhim Rao v. Alkh Murarilal AIR 1954 M.B. 4. Against the decision of the learned District Judge, the present petition for revision has been preferred in this Court.

In the grounds of revision, it is stated that Kartar Singh and Bachan Singh were represented before the learned District Judge by Shri Wazir Chand, but this is not borne out from the record of the appeal preferred by Jagat Singh which has given rise to Regular Second Appeal No. 998 of 1969. Only Bachan Singh and Hamam Kaur were represented by counsel. Kartar Singh was served personally but was absent and was proceeded against ex-parte. It may also be mentioned that Harnam Kaur has, at places in the record of the Courts below been referred to as Harbans Kaur. This seems to be a typographical mistake.

A reference has already been made to the decision of the Supreme Court in Shankar''s case (1). In that case it was held that the order against which a revision is preferred merges in the order of the High Court dismissing the revision petition. No proceedings under Articles 226 and 227 of the Constitution of India are competent against that order, the order having merged in the order of the High Court. Their Lordships while dealing with the true nature of the right of appeal observed as follows:

Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter.

The doctrine of merger of the order or decree of an inferior Court in that of the superior Court in the exercise of its corrective jurisdiction is well-settled. Moment the superior Court exercises its appellate or revisional jurisdiction, the order of the inferior Court merges in the order of the superior Court. The only exception will be where a party to the proceedings in the inferior Court is not before the superior Court. In such a case the doctrine of merger will not apply to the detriment of such a party. But when the matter is taken to the superior Court and the parties to the proceedings in an inferior Court are either represented or served in the superior Court, the order passed by the superior Court will lead to the merger of the order of the inferior Court into that of the superior Court.

In the present case, it was open to Kartar Singh to appear before the superior Court and agitate that no decree could be passed against him because he was not served in the inferior Court. It was also open to him under Order 41, Rule 33, Code of Civil Procedure, to claim that the decree passed against him be set aside because he was not served. The powers of the appellate Court under Order 41, Rule 33 are very wide and in the interests of justice, the appellate Court would have exercised those powers if it had been told that in fact no service was effected on Kartar Singh in the inferior Court. Order 41, Rule 33 in the following terms, and the illustration to this rule fully bears out what is stated above:

The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the Respondents or parties, although such Respondents or parties may not have filed any appeal or objection:

Provided that the Appellate Court shall not make any order u/s 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

Illustration.

A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are Respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.

The third course that was open to Kartar Singh was to ask the superior Court to stay its hands and not to decide the appeal till his application under Order 9, Rule 13, Code of Civil Procedure, pending in the inferior Court had been decided. None of these courses was pursued by Kartar Singh. The result, therefore, is that the order of the inferior Court, which he is now asking to be set aside, having merged in the order of the superior Court, has in a way become non-est and there is no order of the inferior Court which it could set aside. Both in principle and on authority, the decision of the Subordinate Judge dismissing the application under Order 9, Rule 13 of the Code of Civil Procedure, is correct.

For the reasons recorded above, we would return the following answers to the two questions referred for our opinion:

(1) So far as the first question is concerned, the answer is that as soon as the ex-parte decree merged in the decree of the appellate Court, the trial Court had no jurisdiction to entertain the application under Order 9, Rule 13. Code of Civil procedure.

(2) The answer to the second question would be that it would not matter whether the Appellate Court has or has not adjudicated on the rights and liabilities of the person who moves for the setting aside of the ex-parte decree against him provided that the person has been served in the appellate Court and had the opportunity to agitate his rights in appellate Court.