MUHAMMED KANNU MYTHEEN KATTUVAVA Vs. SUBRAMONIA PILLAI VELAYUDHAN PILLAI

JUDGEMENT

(1.) Where a defendant against whom an ex parte decree is passed is not joined as a party to the appeal preferred by other parties to the suit, and the appellate court does not adjudicate upon his case, the ex parte decree against him does not merge in the decree of court of appeal so as to preclude him from applying under O.9 R.13, C.P.C. to the court which passed the ex parte decree to set aside the exparte decree. Vide page 652 of Mulla's Commentary on C.P.C. 12th edition and the decided cases referred to there. Thus the proper forum where the 2nd defendant had to file this petition was the original court which passed the decree as he was not a party to the appeal by the 1st defendant. The order of the lower court is confirmed and this petition is dismissed with costs.