JUDGMENT Sulaiman, J.
1. This is a plaintiffs' appeal arising out of a suit for possession and arrears of rent. The suit was originally decreed on the 3rd September 1920 against defendants Nos. 1, 5. On the 25th October 1920 defendants Nos. 1, 2 and 3 only appealed to the lower Appellate Court. The proceedings had been ex parte against defendants Nos. 4 and 5 and they preferred an appeal; they, were, however, made pro forma respondents in the appeal. While the appeal preferred on behalf of defendants Nos. 1, 3, to which defendants Nos. 4 and 5 were parties, was pending an application was presented in the original Court on behalf of defendants Nos. 4 and 5 on the 30th October 1920 for setting aside the ex parte decree. Certain objections were filed by the plaintiffs on the 15th November 1920, but in these objections no plea was taken that the Trial Court had no jurisdiction to set aside the decree on the ground that an appeal was already pending. On the 7th May 1921 the Court of first instance, apparently on the ground that the defence raised by the defendant was a common one, set aside the decree not only against the two defendants who had applied but against all the defendants and revived the suit. The suit having been revived the defendants who had appealed to the District Judge got a statement made through their Vakil before the District Judge that there was no longer any necessity for deciding the case and that the appeal should be struck off. The order passed by the Appellate Court was "appeal is dismissed according to the above statement."
2. When this suit was re-tried by the first Court it was dismissed on the merits. An appeal was preferred by the plaintiffs to the lower Appellate Court; but in the grounds of appeal again no point was Oaken that the order setting aside the decree was ultra vires, nor does it appear to have been argued before the lower Appellate Court as there is no reference to the point anywhere in the judgment. The appeal was dismissed on the merits, the lower Appellate Court coming to the conclusion that the plaintiffs had no right to the land and had never been in possession of it.
3. A second appeal has been preferred on behalf of the plaintiffs and two main points have been urged on their behalf. One is that the order setting aside the ex parte decree was ultra, vires inasmuch as an appeal had been preferred from that decree and was then pending and the second is that the Court below has erred in interpreting the document filed by the parties.
4. As regards the second point, there is obviously no force in it. No question of an interpretation of any document arises in this case. The lower Appellate Court, after Considering all the documentary and oral evidence, has come to the conclusion that the plaintiffs have no right to the land and have never been in possession of it. The finding is one of fact and cannot be challenged.
5. The main contention of the plaintiffs, however, is that the Court of first instance had no jurisdiction to interfere with the decree which was then under appeal.
6. Order IX, Ruler 13 of the Code of Civil Procedure expressly states that in a case in which a decree is passed ex parte against a defendant the latter may apply to the Court by which the decree was passed for ah order to set it aside, etc. If there were no rulings to the contrary, I would have no hesitation in holding that an application under Order IX, Ruler 13 had to be made to the Court which passed the decree. The opinion prevailing in the various High Courts, however, has by no means been uniform. The view taken in the Madras High Court sometime ago was certainly to the effect that the mere presentation of an appeal to an Appellate Court ousts the jurisdiction of the Court of first instance. Aid appears to have been sought from Section 107 of the Code, which gives to the Appellate Court the same powers as are ordinarily performed by the Court of original jurisdiction. This view, however, was dissented from in case after case by the Calcutta High Court, where the opinion was expressed that such an application can be made only to the original Court. In one case the Calcutta High Court went even to the length to which a Bench of this Court in Gajrajmati Tiwarin v. Swami Nath Rai 36 Ind. Cas. 307 : 39 A. 13 : 14 A.L.J. 853. was not prepared to go. None of the reported oases of this Court which have been brought to my notice are exactly on all fours with the present case. In the present case there are two circumstances to be noted.
1. That the appeal had not been disposed of when the first Court's decree was set aside.
2. That the applicants for setting aside the decree were parties to the appeal.
7. In two earlier cases, namely, those of Palakdhari Rai v. Mankaran Rai, 6 Ind. Cas. 205 : 7 A.L.J. 598. and Mathura Prasad v. Bamcharan Lai, 28 Ind. Cas. 261 : 37 A. 208 : 13 A.L.J. 283. it was held that after the decree of the first Court had been affirmed in appeal the first Court had no jurisdiction to set it aside. These cases are distinguishable on the ground that the appeal had been disposed of and the decree of the first Court had been affirmed. On the other hand, the case reported in Gajrajmati Tiwarin v. Swami Nath Rai 36 Ind. Cas. 307 : 39 A. 13 : 14 A.L.J. 853. lays down that where the applicants for setting aside the decree are not made parties to the appeal, the jurisdiction of the first Court to set aside the ex parte decree s not ousted. In the latter case there in an exhaustive review of the previous authorities and it is noteworthy that at pp. 25 and 31 the learned Judges were inclined to the view that the opinion prevailing in the Madras High Court was not supported by any provision of the Code of Civil Procedure and was erroneous. The Madras High Court has, however, since wavered very much. The first case, namely, that of Bamanadhan Chetty v. Narayanan Chetty 27 M. 602, has since been overruled by a Full Bench of that High Court vide Sankara Bhatta v. Subraya Bhatta 30 M. 535 : 17 M.L.J. 436. and in a later case reported in Palaniappa Chetty v. Subramania Ghetty 62 Ind. Cas. 755 : 44 M. 731 : 13 L.W. 519 : 21 M.W.N. 809 : 41 M.L.J. 90 : 30 M.L.T. 19. it has now been conceded that the mere presentation of an appeal does not necessarily take away the jurisdiction of the original Court. On the facts, that was a case clearly in point. There a decree was passed ex parte against one of the defendants and an appeal against the decree was preferred by another defendant and was pending in the Appellate Court when an application by the former defendant to set aside the ex parte decree passed against him was made to the original Court and not to the Appellate Court. It was held that such an application was not barred. I have already noted that the view prevailing in the Calcutta High Court has consistently been against the appellant. The case of Kumud Nath Boy Chowdhury v. Jotindra Nath Chowdhury 9 Ind. Cas. 189 : 38 C. 394 : 13 C.L.J. 221 : 15 C.W.N. 399, is a case which on facts is very similar to the present one. That also was a case where the appeal was still pending and had not been disposed of. At page 401 the learned Judges remarked that, inasmuch as the appeal was still pending, the decree of the original Court was still in force and in operation it had not been superseded by any decree on appeal or merged therein. Under those circumstances, it was difficult to appreciate how on principle the view could be maintained that the jurisdiction of the original Court to entertain the application to. set aside the decree in so far as it was ex parte had been taken away. The view that the immediate effect of the presentation of an appeal to a superior Court is to destroy the jursidiction of the Subordinate Court to deal with the judgment was not accepted as a proposition well-founded on principle.
8. There is thus the authority of the Madras High Court in Palaniappa Chetty v. Subramania Chetty 6 Ind. Cas. 205 : 7 A.L.J. 598, and of the Calcutta High Court in Kumud Nath Roy Chowdhury v. Jotindra Nath Chowdhury 9 Ind. Cas. 189 : 38 C. 394 : 13 C.L.J. 221 : 15 C.W.N. 399. and there are observations in Gajrajmati Tiwarin v. Swami Nath Bai 36 Ind. Cas. 307 : 39 A. 13 : 14 A.L.J. 853. supporting the Calcutta view. The earlier cases in Palakdhari Rai v. Mankaram Bai 6 Ind. Cas. 205 : 7 A.L.J. 598. and Mathura Prasad v. Bam Charan Lai 28 Ind. Cas. 261 : 37 A. 208 : 13 A.L.J. 283. are clearly distinguishable on the ground that in those cases the appeal had been disposed of and the decree of the first Court confirmed.
9. In view of this state of the authorities, as well as in view of the clear wording of Order IX, Ruler 13 of the Code of Civil Procedure, I am of opinion that the contention urged on behalf of the plaintiffs-appellants is without any force. The result is that this appeal fails and is dismissed with costs.