JUDGMENT 1. This is an appeal from an order of the 2nd Subordinate Judge of Chittagong refusing the Petitioner's application to set aside an ex parte decree under Or. XLI, r. 21 of the Civil Procedure Code. The learned Subordinate Judge decided that he had no jurisdiction to entertain the application. It appears that the Plaintiff brought a suit for possession of certain land against five Defendants, basing his title on a lease from Defendant No. 5, and alleging that Defendants Nos. 1 to 4 were trespassers. The Court of first instance found that the land belonged jointly to all five Defendants, and on 14th February 1908 gave the Plaintiff a decree for one-fifth of his claim, and for possession jointly with Defendants Nos. 1 to 4. The Plaintiff appealed against the decree making all the Defendants-Respondents but Defendant No. 1 alone appeared. On 22nd December 1908, the lower Appellate Court varied the decree of the Court of first instance and gave Plaintiff a decree for the whole land. That decree was ex parte so far as Defendant No. 2 (the Petitioner-Appellant before us) was concerned Defendant No. 1 preferred an appeal to this Court making the Plaintiff alone Respondent, and his appeal was summarily dismissed under Or. XLI, r. 11 on 13th May 1909. On 28th July 1909, Defendant No. 2 applied to the lower Appellate Court under Or. XLI, r. 21 for a re-hearing of the appeal in that Court as against him and his application, as we have said, has been dismissed. The sole point for our determination is whether the lower Appellate Court had jurisdiction to entertain the application. In the petition of objection filed by the Plaintiff the only objection taken to the jurisdiction of the lower Appellate Court was that by virtue of the appeal by Defendant No. 1 to this Court and its dismissal under Or. XLI, r. 11, the decree of the lower Appellate Court had become the decree of this Court, and that it was therefore this Court alone which could entertain the application of Defendant No. 2. From the judgment of the 2nd Subordinate Judge it appears that there was a second objection, namely, that the lower Appellate Court which passed the ex parte decree was the Court of the Additional Subordinate Judge which has since been abolished and not that of the Subordinate Judge. From the judgment of the 2nd Subordinate Judge it appears that there was a second objection, namely, that the lower Appellate Court which passed the ex parte decree was the Court of the Additional Subordinate Judge which has since been abolished and not that of the Subordinate Judge. We may say at once that there is no force in the objection and it has not even been argued before us. Turning to the real point in the case we are of opinion that the various decisions dealing with amendment of decrees and reviews of judgment, which have been cited in argument, are not of much assistance. They turn upon a different state of facts and upon different sections of the Civil Procedure Code. Somewhat more in point are those cases which decide that an original Court can entertain an application to set aside an ex parte decree even where the applicant has preferred an appeal against that decree to a higher Court; see Damodar Manna v. Sarat Chandra 13 C.W.N. 846 (1909) and Kumud Nath v. Jotindra Nath 13 C.L.J. 221 (1911). In those cases, however, the application to set aside the ex parte decree was made while the appeal against it was pending and not finally disposed of. The case of Dhonai Sardar v. Tarak Nath 12 C.L.J. 53 (1910) more closely resembles the present inasmuch as the application there was made after the disposal of the appeal preferred by the other Defendants. At the same time it is not clear from the report or from the file of that case in this Court, which we have examined, that Defendant No. 7 in that case was not made a party Respondent to the appeal of Defendants Nos. 1 and 4 which was dismissed. In the appeal before us it is certain that the present Appellant was no party to the appeal of his brother Defendant No. 1 even in name so that that case may be distinguished on that ground. If it were not distinguishable, it might have been necessary to consider whether the point should not be referred to a Full Bench : for, with all respect to the learned Judges who decided that case we entertain doubts as to the correctness of their conclusion. It appears to proceed upon the ground that because the Appellate Court could under sec. It appears to proceed upon the ground that because the Appellate Court could under sec. 544 of the CPC 1882, on an appeal by two of the Defendants, have reversed the decree appealed from in favour of all, it must have acquired jurisdiction over the entire subject-matter and was competent to come to a determination in regard to the same as between all parties to the suit, and that that jurisdiction continued throughout. This, however, seems to lose sight of the fact that the power to pass a decree in favour of parties who are absent and who have not asked for such relief, was expressly conferred by sec. 544 of the Civil Procedure Code, 1882, now represented by Or. XLI, r. 4, and supplemented by r. 33. There can after all be no harm in deciding in a man's favour, even in his absence and without any direct request by him. But the converse does not necessarily follow, and indeed it is a well-established principle of our jurisprudence that no person is bound by a decree passed against him in his absence and against which he has had no opportunity of showing cause. 2. Upon the undoubted facts of the present case it is difficult to see how the decree of this Court to which the present Appellant was not a party even by name and of which he had no notice can be said to be a decree against him. 3. As a matter of convenience it is obvious that the lower Appellate Court is in a much better position to deal with the present application than this Court as the default in appearance took place in that Court. For these reasons we think that the learned Subordinate Judge had jurisdiction to entertain the application, and we accordingly set aside his order of dismissal, and remand the case to the lower Court for hearing and disposal of the application on the merits. The Appellants costs of this appeal must be paid by the Respondent. We fix the hearing fee at two gold mohurs.