ORDER
Hari Lal Agrawal, J.
1. This is an application by the plaintiffs against the order of the court below setting aside an ex parte decree passed in their favour.
2. During the pendency of this application the suit stands already heard and disposed of on merits in which both the parties had participated. The plaintiffs having lost in the suit have also filed an appeal which is pending in the lower appellate court.
3. The principal question that arises for determination is as to whether in the circumstances the ex parte decree can be restored and this Court should interfere in its revisional jurisdiction.
4. The money suit in question was filed in the year 1977. In that suit the defendant had appeared and filed his written statement and the suit had also proceeded on merits in part but ultimately the court having refused to grant further adjournment to the defendant, decided the suit ex parte on 5-5-1980.
An application under Order 9, Rule 13 of the Code of Civil Procedure was filed for setting aside the ex parte decree and the same was allowed on 8-4-1982. The plaintiffs have accordingly filed the present application.
5. Undisputedly, as already said earlier, the hearing of the suit was taken up on merits in which the plaintiffs and the defendant both participated and the suit has ultimately been dismissed, against which the plaintiffs have already filed an appeal.
A preliminary objection was taker by Mr. Binod Kumar Roy, appearing for the opposite party, that in view of the fact that the suit has since been finally disposed of on merits, this application has now become infructuous.
Mr. R. S. Chatterji, appearing for the petitioners, however, contended that the impugned order setting aside the ex parte decree was entirely without jurisdiction, and the disposal of the suit was no bar for this Court to restore the ex parte decree. The main thrust of the argument of Mr. Chatterji was twofold. Firstly, that on the facts stated above, the decree passed on 5-5-1980 must be deemed to be under Rule 3 of Order 17 of the Code and, therefore, the remedy of the defendant was to file an appeal and the application under Order 9, Rule 13 was not maintainable in the eye of law and secondly, that in any view of the matter, the court below has not recorded any finding of ‘sufficient cause’ for the absence of the defendant and, therefore, the decree could not be set aside.
6. The order sheet of the suit prior to the passing of the ‘ex parte decree’ dated 5-5-1960 has not been shown to me, nor do I find any objection regarding the maintainability of the application under Rule 13 having been taken by the petitioners in the court below. Apart from these facts. Order 17. Rule 3 itself entitles a court to proceed under Rule 2 of Order 17, if any one of the parties is absent. The defendant was absent on the day when the court had directed for ex parte hearing of the suit and, therefore, prima facie the decree should be held to have been passed under Order 17, Rule 2 of the Code and, therefore, an application for setting aside the same was competent. The first point, therefore, has got no substance.
7. Coming to the second point of Mr. Chatterji, the finding recorded by the trial court is in these words :
“I am satisfied that the applicant has shown sufficient cause for not appearing when the suit was called on for hearing.”
In the case of Arjun Singh v. Mohindra Kumar (AIR 1964 SC 993), which was referred to by Mr. Chatterji himself, the distinction between ‘good cause’ occurring in Rule 7 and ‘sufficient cause, occurring in Rule 13 of Order 9 was considered and it was observed that there is no material difference between the facts to be established for satisfying the two tests of ‘good cause’ and ‘sufficient cause’.
There is equally no force in the contention of Mr. Chatterji that the defendant should have applied under Rule 7 of Order 9 for recalling the order for ex parte hearing. There is no bar to a defendant who fails to apply under Rule 7 of Order 9, to make an application for setting aside the decree under Rule 13 after the ex parte decree is passed. I find sufficient support for this view from the case of Arjun Singh aforementioned.
8. Now I come to the objection taken on behalf of the opposite party that this civil revision application is not maintainable. The form in which the preliminary objection has been advanced may not be quite accurate, but the fact remains that this application must fail either as having become infructuous in view of the disposal of the suit itself jn which the plaintiffs had also participated, or by applying some other doctrine like waiver or acquiescence. The suit has now ended in a contested decree and that decree can be set aside only in accordance with law by a higher court. If the present application succeeds then it will amount to restoring or reviving the ex parte decree. The contested decree cannot be superseded by the ex parte decree. The interference by this Court, therefore, could result in an anomaly. Although I could not get any decided case of any High Court dealing with a similar situation, but there are a large cumber of cases where during the pendency of an application for setting aside a decree under Rule 13, an appeal filed against the same decree was disposed of by the appellate court. In such a case it is the settled proposition that where an appellate court Rives a decision in an appeal from an ex parte decree the court of first instance loses its jurisdic-tion either to entertain an application for setting aside the ex parte decree or to dispose of a pending application for setting aside the said decree, and if the trial court does it, its action would be completely ultra vires: the reason being that the decree of the trial court becomes superseded or merged in that of the appellate court (see Mt. Ayodhya Kuar v. Durga Prasad, AIR 1923 Pat 331).
9. In the present case I do not find any justification for making a distinction in the decree passed by a higher court and that passed by the same court Then there is yet another principle on which the application of the petitioners must fail. The petitioners were aware that if they succeed in this case, then their ex parte decree would be maintained and there would be no necessity for any further hearing of the suit They had, therefore, a right to maintain the ex parte decree and in my view, once they went to trial for the sake of obtaining a contested decree, then they must be deemed to have relinquished their right of maintaining the ex parte decree. On the principle of waiver, there is a large number of authorities, e, g.. Associated Hotels of India Ltd. v. S. B. Sardar Ranjit Singh (AIR 1968 SC 933) and Tikaram & Sons Ltd. v. Commr. of Sales Tax, UP (reported in the same volume at page 1288). In the latter case it was held that once the appellant had submitted to the jurisdiction of the revisional authority under the U. P. Sales Tax Act and of the High Court on the question of validity of certain provisions of that Act, they must be deemed to have taken a chance of judgment in their favour and could not take exception to the jurisdiction of the High Court.
I deed not multiply the decisions on this aspect of the matter as in a recent Full Bench decision of our own Court in the case of Chandeshwar Singh v. Dahu Mahto (C. W. J. C No. 484 of 1973) and its analogous case, (disposed of on 18-5-1963) : (Reported in AIR 1983 Pat 257) to which I was a party, and the leading judgment was delivered by me the above principle has been discussed in great detail and a large number of authorities has been considered.
10. Mr. Chatterji bad to fairly con-cede to a question put by me that had the plaintiff succeeded at the contested trial then be would not have pressed this application. It is obvious, therefore, that the petitioners have taken a chance of getting a contested decree in their favour and took no objection to the hearing of the suit on merits, which was to end In the passing of a fresh decree.
11. Sitting in the revisional jurisdiction, therefore it would not be desirable to interfere with the order of the trial court setting aside the ex parte decree. The application, therefore, must fail and is hereby dismissed. In the circumstances of the case, however, I shall leave the parties to bear their own costs.