D.K. Mahajan, J. - (1.) 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 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.
(2.) AT the time when the reference order was passed, the decision of the Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat : A.I.R. 1970 S.C. 1, 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 Civil Procedure 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.
(3.) 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, A.I.R. 1954 M.B. 4. Against the decision of the learned District Judge, the present petition for revision has been preferred in this Court.;