- (1.) These two appeals arise from the same suit and can be disposed of by a common Judgment. The facts necessary to understand the question involved in the appeals can be briefly stated as follows : One Kalu Ram was the owner of 90 kanals of land. He sold this land in favour of three brothers, Kewal Ram, Chet Ram and Kuldip Ram for a consideration of Rs. 65,000/- by a registered sale deed dt. 1-8-1966. Kewal Ram is residing in Village Badala in Jullunder District. Chet Ram and Kuldip Ram were residing at 71, Windsor Road, Forest Gate, London E-7.
(2.) Smt. Ram Lubhai, minor daughter of Kalu Ram, the vendor, filed a suit, from which these appeals arise, for possession of the land on the ground that she being the daughter of the vendor had superior right of pre-emption as against the vendees who were strangers. Kewal Ram alone was served in the suit. The other two were not served. Substituted service was, therefore, taken for service on them by publication in a vernacular paper. The suit was decreed on 31-7-1969 against all the three defendants, ex parte against Chet Ram and Kuldeep Ram. Kewal Ram filed an appeal against this decree and judgment. He made his brothers Chet Ram and Kuldip Ram as pro forma respondents giving their village address for service. In the appeal also they were served by substituted service. The appeal was heard on 5-1-1971 and was dismissed.
(3.) On 24-3-1971, Kuldip Ram and Chet Ram filed an application under 0. 9, R. 13 of C.P.C. in the trial Court for setting aside the ex parte decree against them on the ground that they were neither served in the trial Court nor in the appellate Court. This application was resisted by the plaintiff on the ground that the application before the trial Court was incompetent since the decree had merged in the appellate decree. Evidence was taken and after hearing the parties the trial Court set aside the entire decree. The trial Court held that Kuldip Ram and Chet Ram were residing in England and no attempt was made to serve them personally. That being so, the application was competent in the trial Court as they were neither served in the trial Court nor in the appellate Court.;