JUDGMENT
P.N. Bhagwati, J.
1. These appeals arise out of the same set of facts and will, therefore, be disposed of by a common judgment. The facts giving rise to these appeals are rather peculiar and may be briefly stated as follows.
2. The respondent who is the original plaintiff filed Suit No. 2514 of 1948 against the appellants’ father Bhalaji Gendal in the Court of the Civil Judge (‘Junior Division), Ahmedabad, for a declaration that Bhalaji Gendal was not a permanent tenant of the respondent in respect of a certain field and for possession of the field together with mesne profits. The ground on which possession was sought by the respondent was that Bhalaji Gendal was a tenant of the respondent in respect of the field since 1916-17 A.D. and that the respondent had terminated the tenancy of Bhalaji Gendal by a notice dated 21st February 1947 since the respondent required the field for his personal and non-agricultural use. Bhalaji Gendal in his written statement contended that he was a permanent tenant of the respondent in respect of the field and (hat in any event the respondent was not entitled to possession of the field inasmuch as the notice given by the respondent terminating his tenancy was not legal and valid. Bhalaji Gendal also raised various other contentions in his written statement which it is not necessary to set out for the purpose of the present appeals. During the pendency of the suit Bhalaji Gendal died and the appellants who are his heirs were, therefore, brought on record as defendants in place and stead of Bhalaji Gendal. On the date of hearing of the suit the appellants did not remain present and the full, therefore, proceeded ex parte against the appellants. The trial Court recorued the evidence led on behalf of the respondent and passed an ex parte decree on 30th October 1952, declaring that the appellants were not permanent tenants of the respondent in respect of the field but were merely tenants at will. The trial Court, however, rejected the respondent’s prayer for possession of the field and mesne profits on the ground that the notice of termination of tenancy was not valid and legal- Since the prayer of the respondent for possession and mesne profits was rejected by the trial Court by the ex parte decree dated 30th October 1952, the respondent filed an appeal complaining against that part of the ex parte decree by which his prayer for possession and mesne profits was rejected- Before the appeal was filed by the respondent, the appellants made an application before the trial Court on 17th November 1952, for setting aside the ex parte decree. The application was heard by the trial Court and by an order dated 6th September 1953, the trial Court rejected the application. The appellants thereupon filed an appeal against the order rejecting the application to set aside the ex parte decree. This appeal was filed on 20th October 1953. During the pendency of this appeal, the respondent’s appeal against the ex parte decree came Up for hearing before the learned Assistant Judge at Ahmedabad. Even though the appellants’ appeal against the order rejecting the application to set aside the ex carte decree was pending, this fact was not brouchl to the notice of the learned Assistant Judge during the hearing of the respondent’s appeal. The appellants appeared at the hearing of the respondent’s appeal but they also did not draw the attention of the teamed Assistant Judge to the fact that their appeal against the Order rejecting the application to set aside the ex parte decree was pending in the same Court. The learned Assistant Judge proceeded with the hearing of the respondent’s appeal and disposed of the same by a judgment dated 30th December 1953. The learned Assistant Judge held that the notice of termination of tenancy given by the respondent to Bhalaji Gendal was valid and legal and he accordingly passed a decree in favour of the respondent for possession of the field and mesne profits. The result was that the respondent became entitled under the decree to recover possession of the field from the appellants together with mesne profits. After the disposal of the respondent’s appeal, the appellants’ appeal directed against the Order refusing to set aside the ex parte decree came up for hearing before the same learned Assistant Judge. It is curious that though prior to the hearing of the appellants’ appeal the respondent’s appeal had already been disposed of by the learned Assistant Judge by a decree dated 30th December 1953, this fact was not brought to the notice of the learned Assistant Judge at the time of the hearing of the appellants’ appeal either by the appellants or by the respondent. The hearing of the appellants’ appeal proceeded before the learned Assistant Judge as if nothing had transpired after the passing of the ex parte decree by the trial Court on 30th October 1952, and the ex parte decree remained subsisting. The learned Assistant Judge by an Order dated 23rd August 1954 allowed the appellants’ appeal and set aside the ex parte decree passed by the trial Court on 30th October 1952. In the meantime the respondent filed an application for execution of the decree passed by the learned Assistant Judge on 30th December 1953 under which the respondent was entitled to recover possession of the field from the appellants and on the application execution was ordered to issue on 6th March 1954 and in execution possession of the field was taken from the appellants and handed over to the respondent an 26th March 1954. The result was that on 23rd August 1954, when the appellants” appeal was decided by the learned Assistant Judge, the appellants were no longer in possession of the field, the respondent having recovered possession of the same from the appellants in execution of the decree passed by the learned Assistant Judge on 30th December 1953. The appellants, thereafter, filed an application for restoration of possession of the field from the respondent on 6th October 1954. The ground on which the application was made by the appellants was that the ex parte decree had been set aside by the Order made by the learned Assistant Judge on 23rd August 1954, and that the appellants were, therefore, entitled to restoration or possession of the field which had been taken from them on 28th March 1954. This application was rejected by the trial Court on 31st March 1955, since in the opinion of the trial Court the ex parte decree dated 30th October 1952 which was purported to be set aside by the Order made by the learned Assistant Judge on 23rd August 1954 was already merged in the decree passed by the learned Assistant judge on 30th December 1953, before the Order setting aside the ex parte decree was passed on 23rd August 1934, and there was, therefore, no ex parts decree on which that Order could operate and the decree passed by the learned Assistant Judge on 30th December 1953, therefore, remained valid and binding on the parties and since possession of the field was recovered by the respondent from the appellants in execution of that decree, the appellants were not entitled to restoration of possession of the field from the respondent. It appears that the suit was placed before the trial Court on the basis that the ex parte decree was set aside by the order of the learned Assistant Judge dated 23rd .August 1954, and that the suit was, therefore, revived. The trial Court by an Order ‘dated 31st March 1955, held that the suit was already disposed of by the decree dated 30th December 1953, passed by the learned Assistant Judge in the respondent’s appeal and that nothing further, therefore, remained to be done in the suit The appellants thereupon filed two appeals, one against the Order rejecting their application for restoration of possession of the field and the other against the Order treating the suit as disposed of. Both the appeals were heard by the Assistant Judge at Ahmedabad. The learned Assistant Judge came to the same conclusion as the trial Court and dismissed the appeals. It is against the dismissal of these appeals that the appellants have brought the present Second Appeals before this Court.
3. The short question which arises in these Second Appeals is as regards the effect of the decree dated 30th December 1953 passed by the learned Assistant Judge in the respondent’s appeal and the Order dated 23rd August 1954, passed by the learned Assistant Judge in the appellants’ appeal. “By the Order dated 23rd August 1954 the learned Assistant Judge purported to set aside the ex parte decree dated 30th October 1952 even though the respondent’s appeal against the ex parte decree had already been disposed of before that date by the decree dated 30th December 1953. The question is did the ex parte decree subsist after the decree dated 30th December 1953 was passed by the learned Assistant Judge in the respondent’s appeal and if it did not subsist and was merged in the decree dated 30th December 1953, did the Order dated 23rd August 1954, have the effect of setting aside or superseding the decree dated 30th December 1953? The argument of Mr. R.M. Shah, learned advocate on behalf of the appellants was that the ex parte decree dated 30th October 1952 was not merged in the decree dated 50th December 1953, at least in so far as it declared that the appellants were not permanent tenants of the respondent but were merely tenants at will and that the Order dated 23rd August 1954 passed by the learned Assistant Judge in the appellants’ appeal set aside this portion of the ex parte decree which subsisted even after the passing of the decree dated 30th December 1953. Mr. R.M. Shah contended that the relief for declaration that the appellants were not permanent tenants of the respondent in respect of the field was the principal relief claimed by the respondent and that since the relief for possession and mesne profits was consequential upon the principal relief, if the ex parte decree granting this principal relief was set aside by the Order dated 23rd August 1954, the decree dated 30th December 1953. granting consequential relief could no longer stand and must be taken as set aside by the Order dated 23rd August 1954. Mr. R. M. Shah drew the analogy of an appeal against a preliminary decree in a mortgage suit and contended that just as the setting aside of the preliminary decree in appeal would also carry with it the consequence of setting aside the final decree which may be passed during the pendency of the appeal, similarly the setting aside of the ex parte decree dated 30th October 1952 in respect of the principal relief of declaration would also carry with it the consequence of setting aside the decree dated 30th December 1953, in respect of the consequential relief for possession and mesne profits. The net result of the argument was that by the Order dated 23rd August 1954 both the ex parte decree dated 30th October 1952, as well as the decree dated 30th December 1953, were set aside and the respondent having obtained possession of the field from the appellants in pursuance of a decree which was set aside or had ceased to exist, the respondent was liable to restore possession of the field to the appellants and there being no decree in the suit, the trial Court was bound to proceed with the hearing of the suit. The argument is in my opinion untenable and for reasons which I shall presently proceed to state, I cannot accept the same.
4. The foundation of Mr. R.M. Shah’s argument was that the ex parte decree dated 30th October 1952, did not merge in the decree dared 30th December 1953, at least in so far as it declared that the appellants were not permanent tenants of the respondent in respect of the field but were merely tenants at will If the ex parte decree dated, 30th October 1952 wholly merged in the appellate decree dated 30th December 1953, it obviously ceased to exist and in that event the Order dated 23rd August 1954 in the appellants’ appeal was futile inasmuch as it purported to set aside an ex parte decree which did not subsist at the date when the Order was made. The question, therefore, is whether the ex parte decree dated 30’h October 1952 merged in the appellate decree dated 30th December 1953, or continued to subsist after the appellate decree dated 30th December 1953, either wholly or in part? Now it is well settled by authorities that when the appellate Court makes a decree, the decree of the original Court is merged in that of the superior Court and it is the latter decree alone that can be executed. This principle applies even where the decree of the original Court is confirmed by the appellate Court. The decree or the original Court is merged in the decree of the appellate Court for all purposes and the only decree which subsists is the decree of the appellate Court. The decree of the original Court ceases to exist for all purposes and in order to see which is the decree which finally adjudicates the rights and liabilities of the parties, one must turn to the decree passed by the appellate Court. As observed by Bhashyam Ayyangar, J, in Kristnama. Chariar v. Mansammal, ILR 26 Mad 91 (FB).
“when an appeal is preferred from a decree of a Court of First Instance, the suit is continued in the Court of Appeal and re-heard either in whole or in part, according as the whole suit is litigated again in the Court of Appeal Or only a part of it and the final decree in the appeal is the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of First Instance”.
This principle has been recognized in numerous decisions of various Courts including the Privy Council and the latest pronouncement of this principle is to be found in a decision of the Bombay High Court, in Hussain Sab v. Sitaram, 54 Bom LR 947: (AIR 1953 Bom 122). Mr. R.M. Shah also did not dispute this principle but he contended that this principle applies only in respect of that part of the decree of the original Court against which the appeal is filed. According to Mr. R.M. Shah whether the entire decree or a portion of it merges in the decree of the appellate Court depends upon the- scope of the appeal preferred against the decree of the original Court. If the appeal is directed only against a part of the decree of the original Court and that part of the decree is confirmed, varied or reversed, the decree of the appellate Court supersedes the decree of the original “Court only in respect of that Part and the rest of the decree of the original Court which is riot appealed against continues to subsist. Following this line of reasoning Mr. R.M. Shah contended that in the present case there were two reliefs claimed by the respondent in the suit; one of declaration and the other of possession and mesne profits; the trial Court passed a decree granting the relief of declaration but rejecting the relief of possession and mesne profits; the appellants appealed only against that part of the decree which rejected the relief of possession and mesne profits and it was that part of the decree which was reversed by the appellate Court and the decree dated 30th December 1953, passed by the appellate Court, therefore, superseded the ex parte decree dated 30th October 1952, only to the extent to which it rejected the relief of possession and mesne profits; the rest of the ex parte decree dated 30th October 1952 which granted the relief of declaration in favour of the respondent was not superseded by the appellate decree dated 30th December 1953 and continued to subsist even after the appellate decree dated 30th December 1953, and could be set aside by the Order dated 23rd August 1954. I do not think this line of reasoning suggested by Mr. R.M. Shah can be accepted. An appeal is merely s continuation of the suit and when an appeal is preferred from a decree of the original Court, the entire suit is before the appellate Court; the suit is continued in the appellate Court and re-heard either in whole or in part according to the scope of the appeal- When the appellate Court passes a decree whether one of confirming, modifying or reversing, the appellate! Court disposes of the entire suit which is before I it. The appellate Court confirms or varies or reverses that portion of the decree of the original Court which is appealed against and litigated in the appeal and so far as the rest of the decree of the original Court is concerned, the appellate Court confirms the same because no objection is raised thereto by either party.
5. When an appeal is preferred, the appellate Court is seized of the whole suit but the relief given by the appellate Court is limited to the portion of the decree of the original Court appealed against or objected to under Order 41, Rule 22 of the Code of Civil procedure since the appellate Court ordinarily does not give relief to any party who has not applied to it in the form and manner prescribed by law. The portion of the decree of the original Court of which no objection is raised by either party is, therefore, confirmed by the appellate Court. This is very forcibly brought out by the provisions of Order 41, Rule 33 of the Code of Civil Procedure. This rule provides that the appellate Court shall have power to pass any decree and make any order which ought to have been passed Or made and to pass or make such further or other decree or order as the case may require, and this power can be exercised by the appellate Court notwithstanding that the appeal is as to part only of the decree and can be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Under this rule the appellate Court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power can be exercised in favour of all or any of the parties even though they may not have filed any appeal or objection. The appellate Court has thus power even when an appeal is only as regards a part of the decree of the Original Court to vary or reverse that part of the original decree which is neither appealed from nor objected to by any of the parties. This rule is token for the most part from Order 58 Rule 9, Sub-rule (4) of the Rules of the Supreme Court of Judicature in England and it has been held in England on a construction of Order 58, Rule 4 of the Rules of the Supreme Court that the appellate Court has power to alter a part of the judgment of the Court below although there is no appeal from that part. It has also been held with reference to this rule by numerous Courts in this country that when the decree of the original Court consists of two parts, one part being in favour of the defendant and the other part being against the defendant and the defendant appeals against that part of the decree which is against him, the appellate Court can vary or reverse the part of the decree which is in favour of the defendant though the plaintiff may not have appealed from or objected to that part of the decree, Vide Iswarayya v- Swamam Iswarayya, AIR 1931 PC 234 and Radhika Mohan v. Sudhir Chamdra, AIR 1937 Cal 10. This clearly shows that when an appeal is filed even as regards a part of the decree of the original Court, the entire suit is before the appellate Court and the appellate Court in adjudicating in the appeal confirms, varies or reverses that part of the decree of the original Court which is appealed against or objected to and so far as the rest of the decree of the original Court is concerned, no exception having been taken to that Part of the decree, the appellate Court confirms the same unless it chooses to vary or reverse the same in exercise of its powers under Order 41, Rule 33 of the Code of Civil Procedure, I am supported in this opinion by a Full Bench decision of the Madras High Court in ILR 26 Mad 91 (FB) (supra). The following observations of Bhashyam Ayyangar, J., in that case are very material and may be set out in extenso:
“…When an appeal is preferred from a decree of a Court of First Instance, the suit is continued in the Court of Appeal and re-heard either in whole or in part, according as the whole suit is litigated again in the Court of Appeal or only a part of it- The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of First Instance. The mere fact that a matter is litigated both in the Court of First Instance and again, though only in part, in the Court of Appeal, cannot convert or split the suit into two and there can be only one final decree in that suit, viz., the decree of the Court of Appeal. There cannot be two final decrees in such a suit, one by the Court of First Instance and the other by the Court of Appeal. Section 577, Civil Procedure Code, therefore provides that the appellate judgment may be for confirming, varying or reversing the decree appealed against. If the appeal be against a portion of the decree only and the appeal be dismissed the decree will be one confirming as a whole the decree appealed against, including the portion not appealed against and the confirmation is not limited to the portion appealed against. If such appeal be allowed, the decree appealed against will not be reversed by the appellate decree but only varied or modified and confirmed as to the rest, i.e., the portion not appealed against. The portion appealed against and litigated in the Court of Appeal is varied or confirmed according as the objection taken, in the Court of Appeal, to such part of the decree prevails Or fails. The rest of the decree is confirmed because no objection is raised thereto by the party concerned and it is not the function of a Court of Appeal, as distinguished from a Court of Revision, to give relief to any party who has not applied to it in the form and within the time prescribed for appeal”.
In the present case the respondent’s appeal was directed against that part of the ex parte decree dated 30th October 1952 which rejected the relief of possession and mesne profits. The rest of the ex parte decree dated 30th October 1952 was in favour of the respondent inasmuch as it declared that the appellants were not permanent tenants of the respondent in respect of the field but were merely tenants at will. The appellants could have filed cross-objections against that part of the ex parte decree dated 30th October 1952, which granted the declaration that the appellants were not permanent tenants of the respondent in respect of the field but were merely tenants at will; but the appellants did not choose to file such cross-objections with the result that no exception was taken to this part of the ex parte decree dated 30th October 1952. That, however, did not make any diference. When the learned Assistant Judge hearing the respondent’ appeal passed the decree dated 30th December 1953, the appellate decree dated 30th December 1953, had the effect not only of reversing the ex parte decree dated 30th October 1952 in so far as the ex parte decree rejected the relief of possession, and mesne profits but also of confirming the ex parte decree in so’ far as it granted the declaration that the appellants were not permanent tenants in respect of the field but were merely tenants at will. The learned Assistant Judge could not have granted the relief of possession and mesne profits even if the notice terminating the tenancy was valid and legal unless it was established that Bhalaji Gendal was not a permanent tenant of the respondent in respect of the field but was merely a tenant at will. If Bhalaji Gendal was a permanent tenant of the respondent in respect of the field, then whatever view was taken of the notice given by the respondent terminating the tenancy of Bhalaji Gendal, the respondent could not have been held entitled to recover possession of the field from the appellants and the learned Assistant Judge hearing the respondent’s appeal could not have passed a decree for possession and mesne profits against the appellants. It was, therefore, necessary for the learned Assistant Judge to come to a finding that Bhalaji Gendal was not a permanent tenant of the respondent in respect of the field but was merely a tenant at will before he could hold that the tenancy of Bhalaji Gendal was terminated by virtue of the notice given by the respondent and that the respondent was entitled to recover possession of the field from the appellants, for if Bhalaji Gendal was a permanent tenant of the respondent and was not a tenant at will, the notice given by the respondent would not have the effect of terminating the tenancy of Bhalaji Gendal and in that event the respondent would not be entitled to recover possession of the field from the appellants. When the learned Assistant Judge passed the decree dated 30th December 1953 awarding possession and mesne profits to the respondent, that could only be on the footing that Bhalaji Gendal was not a permanent tenant of the respondent in respect of the field but was merely a tenant at will and there was thus implicit in the decree dated 30th December 1953 the confirmation of the ex parte decree dated 30th October 1952 in so far as it declared that the appellants were not permanent tenants of the respondent in respect of the field but were merely tenants at will. I must, therefore, hold that the appellate decree dated 30th December 1953 reversed the ex parte decree dated 30th October 1952 in so far as it rejected the relief of possession and mesne profits and confirmed the ex parte decree dated 30th October 1952 in so tar as it declared that the appellants were not permanent tenants of the respondent in respect of the field but were merely tenants at will. If this is the true legal position, it is clear that the ex parte decree dated 30th October 1952 wholly merged in the appellate decree dated 30th December 1953 and ceased to have any existence after the appellate decree dated 30th December 1953 Since the ex parte decree dated 30th October 1952 did not subsist after the appellate decree dated 30th December 1953, the Order dated 23rd August 1954 passed by the learned Assistant Judge in the appellants’ appeal was futile inasmuch as it purported to set aside an ex parte decree which did not subsist and was not in existence- The ex parte decree dated 30th October 1952 was purported, to be set aside by the learned Assistant Judge under Order 9, Rule 13 of the Code of Civil Procedure. The exercise of the power under Order 9, Rule 13 of the Code of Civil Procedure, however, postulates the existence of an ex parte decree but if the ex parte decree dated 30th December 1952 merged in the appellate decree dated 30th December 1953 and consequently ceased to have any existence, it could not possibly be set aside by the Order dated 23rd August 1954 and the Order dated 23rd August 1954 was ineffectual- I may mention at this stage that a reference was made by Mr. R.M. Shah to a decision of the Calcutta High Court reported in Mono Mohan v. Nripendra Nath, AIR 1937 Cal 548 and reliance was placed on this decision in support ot the contention that there could be merger of only a part of the decree of the original Court in the decree passed by the appellate Court. I do not think this decision helps Mr. R.M. Shah. In that case a suit was filed against several defendants and in the suit a decree was passed on contest against some of the defendants and ex parte against others. The contesting defendants appealed against the decree, making parties to the appeal all defendants who were parties to the suit. In the meantime two of the defendants against whom the ex parte decree was passed, filed applications for setting aside the ex parte decree before the trial Court. Before the applications were heard by the trial Court, the appeal of the contesting defendants was disposed of by the appellate Court and the appellate Court confirmed the decree passed by the trial Court except as regards one of the defendants who succeeded in the appeal and the decree against whom was set aside. After the decree was passed by the appellate Court, the applications for setting aside the ex parte decree came up for hearing before the trial Court when the trial Court dismissed the applications on the ground that the decree of the trial Court against all the defendants except one having been affirmed on appeal by the appellate Court, there was no ex parte decree of the trial Court in existence which could be set aside under the provisions of Order 9, Rule 13 of the Code of Civil Procedure. The matter was carried in appeal and a question arose as to what was the effect of the decree of the appellate Court on the decree passed by the trial Court ex parte against some of the defendants. The learned Judges of the Calcutta High Court held that the decree of the trial Court was one indivisible decree against all the defendants and proceeded upon a ground common to them all and that the entire subject matter of the suit and of the decree was involved in the appeal and the decree of the trial Court, therefore, merged in the decree of the appellate Court and ceased to exist. The learned Judges observed that there could be a merger of a part of the decree of the original Court in the decree of the appellate Court and whether the entire decree or a portion of it merged in the decree of the appellate Court would depend upon the scope of the appeal which in its turn would depend upon the value of the appeal, the subject matter involved, the parties concerned and the manner of its disposal- It must, however, be remembered that these observations were made in the context of a suit filed against several defendants some of whom appealed and the others did not. If the decree of the trial Court was not one indivisible decree against all the defendants and did not proceed upon a ground common to them all, the decree would have had a separate and distinct effect against each of the defendants and if only some of the defendants appealed and the others did not, the decree as against the defendants who did not appeal would have remained outstanding and would not have merged in the decree passed by the appellate Court in the appeal filed by the other defendants. The appeal filed by some of the defendants against the decree of the trial Court would have been a continuation of the suit only as against those defendants and the decree of the appellate Court would have superseded the decree of the trial Court only in so far as those defendants were concerned, leaving outstanding and unaffected the decree of the trial Court against the remaining defendants. The learned Judges of the Calcutta High Court, however, held on the facts of the case before them that the decree of the trial Court was one indivisible decree against all the defendants and proceeded upon a ground common to them all and that the decree passed by the appellate Court therefore, superseded the decree of the trial Court wholly even as regards the defendants who had not appealed. The observations in that case to the effect that there could be merger of only a part of the decree of the Original Court in the decree of the appellate Court must, therefore, be read in the context of the facts of that case and cannot apply to a case like the present one where the suit is only against a single defendant. The present case must be decided in accordance with the principle enunciated in the Full Bench decision of the Madras High Court in Kristriama Charjar’s case, ILR 26 Mad 91 (FB) (supra)- I, therefore, reject the contention of Mr. R.M. Shah that the ex parte decree dated 30th October 1952 continued to subsist even after the appellate decree dated 30th December 1953 at least in so far as it declared that the appellants were not permanent tenants of the respondent in respect of the field but were merely tenants at will. If that contention is not accepted, nothing further survives in these appeals. The analogy of a preliminary decree and a final decree relied on by Mr. R.M. Shah cannot possibly apply. And the reason is obvious. When a final decree is passed consequent upon a preliminary decree, the final decree does not supersede the preliminary decree but merely re-states and applies with precision what the preliminary decree has ordained- The preliminary decree declares the rights and liabilities of the parties while the final decree carries out ‘the directions contained in the preliminary decree and states the final resultant position between the parties on the basis of the rights and liabilities declared by the preliminary decree. When, therefore, an appeal is preferred against a preliminary decree and the preliminary decree is varied or reversed, the final decree which is based on the preliminary decree passed by the trial Court, is also affected because the preliminary decree passed by the trial Court is substituted by the preliminary decree passed by the appellate Court. The law, therefore, declares that when a preliminary decree is modified in appeal, the final decree must follow the appellate decree. This principle, however, cannot apply to the present case because in the present case the appellate decree dated 30th December 1953 was not based On or consequential upon the ex parte decree dated 30th October 1952 but was destructive of the ex parte decree dated 30th October 1952 and the ex parte decree dated 30th October 1952 ceased to have any existence at all after the passing of the appellate decree dated 30th December 1953-The decisions cited by Mr. R.M. Shah regarding the effect of an appeal against a preliminary decree on the final decree are, therefore, of no assistance to me in the present case. I am, therefore, of the opinion that the ex parte decree dated 30th October 1952 was merged in the appellate decree dated 30th December 1953 and that the Order dated 23rd August 1954 passed by the learned Assistant Judge in the appellants’ appeal was futile and ineffectual and did not have the effect of setting aside the appellate decree dated 30th December 1953 which remained valid and binding on the parties and that the suit was effectively disposed of by the appellate decree dated 30th December 1953 and that the respondent having taken possession of the field from the appellants in pursuance of the appellate decree dated 30th December 1953, the appellants were not entitled to restoration of possession of the field from the respondent.
6. The result is that the appeals fail and will
be dismissed. Each party will bear and pay his own
costs through out.
