R. R. Rastogi, J. - (1.) THIS is defendant's application in revision under Section 115 CPC. The brief facts are that the plaintiff-opposite party no. 1, Rahmatullah had filed a suit against the defendant-applicant, Smt. Shanti Devi and eight others for declaration that the execution proceedings and the sale held in the execution of the decree passed in suit no. 230 of 1943 of the Court of the Additional Munsif, Agra, were null and void. Smt. Shanti Devi was the auction-purchaser of the disputed property. She contested the suit along with some other defendants. The trial court had first framed and decided some preliminary issues and thereafter fixed 5-10-74 for framing remaining issues. On that date the defendants were found absent and when the court was going to make an order that the suit would proceed ex parte, counsel for defendant no. 8 appeared and in his presence the issues were framed and 19-12-74 was fixed for final hearing. Thereafter there were some other dates fixed and ultimately on 21-10-75, 23rd of Decembr, 1975, was fixed for final hearing. In the meantime on 28-11-75 the case was transferred from the Court of the 1st Additional Munsif, Agra, where it had been pending, to the Court of the Vllth Additional Munsif, Agra. The transferee court took up the case on the date fixed i. e. 23-12-75, and since no one appeared on behalf of the defendants, the suit proceeded ex parte and it was decreed on 5-1-76. The defendant applicant, Smt. Shanti Devi, then moved an application on 10-2-76 under Order 9 Rule 13, CPC for setting aside the ex parte decree. That application was dismissed by an order made on 24-4-76. Aggrieved the defendant-applicant filed an appeal which met with the same fate and hence this revision.
(2.) IT was submitted before me on behalf of the defendant-applicant that the transferee Court erred in taking up the suit for hearing on 23-12-75 and in proceeding ex parte because no information was given of the transfer of the suit to the defendant-applicant from the Court of 1st Additional Munsif, Agra, to the Court of 7th Additional Munsif, Agra, as required under Rule 89-A of General Rules (Civil) Vol. I. I find that there is considerable merit in this contention. Rlue 89-A aforesaid provides for procedure to be followed on transfer or withdrawal of cases. IT says that when a case, i. e. a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular court has been fixed, is transferred from that court to another, the former coart shall record the order of transfer in the order sheet and get it signed by counsel of the party or parties ; if any party is unrepresented information shall be sent to his registered address. Sub-rule (2) says that a note to the effect that a party or the parties have been informed in accordance with sub-rule (1) shall be made on the record by the transferring court. In the present case it does not appear that any such information was given by the transferring Court of the transfer of the case on 28-11-75. The trasferee Court as well did not give any such information. Sub-rule (4) of Rule 89-A requires that the Court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer. The transferee Court did not satisfy itself before proceeding with the case that the parties or their counsel had been informed of the transfer. The decision given in the case was, therefore, bad in law and should be set aside. The view taken by the appellate court that "when the case was proceeding ex parte, it was none of the duties of the transferee Court to have informed the counsel of the appellant about the transfer of the date fixed in the case" is manifestly erroneous. It was, however, contended on behalf of the plaintiff-opposite party no. 1 that the defendant applicant not only filed an application under Order 9 Rule 13 CPC for setting aside the ex parte decree but also filed an appeal against the ex parte decree Itself and since that appeal was dismissed, the decree passed by the trial court merged in the decree of the appellate court and hence the present revision has become infructuous. In my opinion there is not much substance in this contention. It is correct that the defendant-applicant not only filed an application for setting aside the ex parte decree but also filed an appeal against that decree itself. That appeal was filed after- the expiry of the period provided in that behalf and an application for condonation of delay was given. That application was rejected by the appellate court. A photostat copy of that order dated 12-2-77 has been shown to me. It would appear, therefore, that the appellate court in rejecting the application for condonation of delay did not admit and entertain the appeal much less consider it on merits and that being so, there was no question of the merger of the decree of the trial court into the decree of the appellate court. The juristic justification of the doctrine of merger, as observed by the Supreme Court in Gojer v. Ratan Lal Singh, AIR 1974 Supreme Court 1380 (para 10), may be sought in the principle that there cannot be, at one and the same time, more than one, operative order governing the same subject-matter. Therefore, the judgment of an inferior court, if subjected to an examination by the superior court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior court. In other words, the judgment of the inferior court loses its identity by its merger with the judgment of the superior court. In the present case, the judgment of the inferior court had not been subjected to an examination by the superior court and hence it did not cease to have existence in the eye of law. It cannot be said that when the appellate court refused to condone the delay and admit the appeal, it thereby superseded the judgment of the inferior court.
(3.) IN State of Madras v. Madurai Mills, AIR 1967 Supreme Court 681 the doctrine of merger was explained thus :- "But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. IN our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction." In my opinion on the facts of the present case it cannot be said that the order of the trial court had merged in the order of the appellate court. The present revision, has, therefore, not become infructuous.;