JUDGMENT 1. This Appeal is directed against an order by which the Court below has refused to entertain an application to set aside an ex parte decree on the ground that it had no jurisdiction to set aside that decree. The circumstances under which the decree in question was made and the application presented to have it set aside are not disputed. The Plaintiff, now Respondent before us, took a mortgage from one Bishnath Singh and his son Debi Pershad. He sued to enforce his security after the death of the father against Debi Pershad and his four sons and two nephews. Debi Pershad was the first Defendant. The next four Defendants were his sons and the last two Defendants were the sons of Thakur Pershad, the brother of Debi Pershad. The claim was resisted by the sixth and seventh Defendants alone and the suit proceeded ex parte against the other five Defendants. In the result, a decree was made on the basis of the mortgage against the first five Defendants alone. That decree directed the sale of the mortgaged property to the extent of the two-thirds share belonging to Bish-nath and Debi Pershad. It was further declared that if upon the sale of this two-thirds share the mortgage debt was not satisfied, the decree-holder would be entitled to proceed personally against all the seven Defendants. The Plaintiff preferred an appeal against that decree to this Court. His appeal was described on the face of the memorandum as an appeal against only that portion of the decree which declared that an one-third share of the mortgaged property was not liable to be sold. In other words, the appeal was directed against the sixth and seventh Defendants alone. The other Defendants were joined as party Respondents to the appeal but no relief was claimed against them, and they did not enter appearance in the appeal. Indeed, it has not been investigated whether they had any notice of the appeal. The sixth and seventh Defendants, who were the principal Respondents, entered appearance and filed a memorandum of cross-objections to the effect that there should not have been any personal decree against them. The appeal and the cross-objections were both successful. This Court held that the Plaintiff was entitled to a mortgage decree against the whole property, but that the sixth and seventh Defendants were not personally liable under the decree. The appeal and the cross-objections were both successful. This Court held that the Plaintiff was entitled to a mortgage decree against the whole property, but that the sixth and seventh Defendants were not personally liable under the decree. When the decree came to be drawn up, it was made self-contained and the provisions of the decree of the original Court, in so far as they related to the first five Defendants, were reproduced and incorporated therein. 2. The first five Defendants now apply to have the ex parte decree set aside. Their claim is resisted by the Plaintiff on the ground that the Subordinate Judge has no jurisdiction to entertain the application, because there is no longer any subsisting decree of his Court which can be set aside by him as an ex parte decree. The Subordinate Judge has given effect to this contention, and, as already stated, has refused to entertain the application. 3. In Appeal it is contended that the Subordinate Judge has taken an erroneous view of the law applicable to this case and that he should have considered the application to set aside the ex parte decree on the merits. In our opinion, there is no answer to this argument. The obvious test to be applied to determine whether the Subordinate Judge has jurisdiction to entertain the application to vacate the ex parte decree, is, whether in spite of the appeal presented to this Court, there is still a subsisting ex parte decree over which the Subordinate Judge has control. The answer to this question depends upon the scope of the appeal presented to this Court by the Plaintiff. As we have already explained, that appeal was directed solely against the sixth and seventh Defendants. In other words, it was an appeal directed against the decree of the original Court in so far as that decree had been made on contest. The Plaintiff was satisfied with the decree he had obtained ex parte against the first five Defendants and it was not necessary for him to attack that portion of the decree by way of appeal to this Court. He did not do so nor did these Dependants prefer an appeal. In fact their case new is that they were not aware of the proceedings in the suit till within a short time of the application made to set aside the ex parte decree. He did not do so nor did these Dependants prefer an appeal. In fact their case new is that they were not aware of the proceedings in the suit till within a short time of the application made to set aside the ex parte decree. The cross-objections filed by the sixth and seventh Defendants, who were Respondents in this appeal, only attacked so much of the decree of the Court of first instance as made them per-sonly liable for the balance of the judgment-debt that might remain after the sale of the two-thirds share of the mortgaged property. The scope of the appeal was consequently limited to the question which arose between the Plaintiff and the sixth and seventh Defendants. The questions in controversy between the Plaintiff and the first five Defendants were not raised in the appeal, and never came under the judicial consideration of this Court. Under these circumstances, the view cannot possibly be supported that the effect of the decree of this Court was to supersede the decree of the Court of first instance in so far as it had been made ex parte against the first five Defendants. That decree was not affirmed, modified or reversed in so far as these Defendants were concerned, although, as a matter of form, one self-contained decree was prepared in this Court. It cannot thus be maintained that the effect of that decree was to merge the ex parte decree therein; in cases of this description, we must look rather to the substance than to the form of the proceeding. 4. It has been argued, however, by the learned Vakil for the Respondents that the view we take is opposed to the decision of this Court in Mon Mohini Chowdhuri v. Nara Narayan Ray per 4 C.W.N. 456(1899) Dhonai Sardar v. Taraknath Chowdhury 12 C.L. J. 53 (1910) and Zimutunnessa Bibi v. Muddun Mohan Pal 22. W.R.537 (1874) Reliance has also been placed upon the decision of the learned Judges of the Madras High Court in Sankara Bhatta v. Subraya Bhatta I. L. R. 30 Mad. 535 (1907) The cases upon which reliance is placed are, however, clearly distinguishable. 5. W.R.537 (1874) Reliance has also been placed upon the decision of the learned Judges of the Madras High Court in Sankara Bhatta v. Subraya Bhatta I. L. R. 30 Mad. 535 (1907) The cases upon which reliance is placed are, however, clearly distinguishable. 5. In the case of Mon Mohini Chowdhurani v. Nara Narayan Ray 4 C. W. N. 456 (1899, a suit had been brought against a large number of Defendants, two of whom alone entered appearance and contested the claim of the Plaintiff. The suit was decreed by the Court of first instance, whereupon the contesting Defendants preferred an appeal which ultimately proved unsuccessful. An application was subsequently made by the other Defendants against whom the decree had been made ex parte to set aside that decree. That application was granted. The first two Defendants, who had lost after contest, then applied to have the decree set aside in so far as they also were concerned. The Court of first instance granted the application. It was ruled by this Court that under the circumstances, so far as these Defendants were concerned, the decree of the original Court had merged in the decree of the Appellate Court, and that, consequently there was no decree in existence over which the Court of first instance still retained control. 6. In the second case, Dhonai Sardat v. Jaraknath Chowdhury 12 C L. J. 53 (1910) a decree was made ex parte against several Defendants, two of whom alone preferred an appeal. The decree, however, was indivisible; and upon appeal the whole of the subject-matter of the litigation was laid before the Appellate Court. In other words, the appeal, although preferred by two of the Defendants alone, was directed against the entire decree. Under the circumstances, this Court held that the effect of the decree of the Appellate Court was to, supersede the original decree. It is manifest that this case is distinguishable upon an essential point from the case now before us. As already explained, the appeal was restricted here to the question which arose between the Plaintiff and the sixth and seventh Defendants, namely, the right of the Plaintiff to proceed in execution of the mortgage decree against the one-third share of the property which belonged to these Defendants,. As already explained, the appeal was restricted here to the question which arose between the Plaintiff and the sixth and seventh Defendants, namely, the right of the Plaintiff to proceed in execution of the mortgage decree against the one-third share of the property which belonged to these Defendants,. It is consequently unnecessary for us to consider whether the decision in Dhonai Sirdar v. Taraknath Chowdhury 12 C. L. J. 53 (1910), can be supported on principle. We need only mention that the case has been doubted lntu Mea v. Jerbux Bhuyan 15 C. W. N. clxxx (1911). and has been distinguished [Kumud Nath Roy Chowdhury v. Rat Jatindra Nath Chowdhury 13 c. L. J. 221 (1911). 7. The case of Zimutunnessa Bibi v. Muddun Mohan. 22 W. R. 637 (1874'., is also clearly distinguishable. There a suit was brought by the Plaintiff against three Defendants The suit was decreed as against one Defendant only and it was dismissed as against the others. Upon appeal preferred by the Plaintiff, a decree was made ex Parte against the Defendants who had been successful in the original Court. They then applied to the Court of first instance to set aside the ex parte decree. It was ruled that there was no ex parte decree of the Court of first instance which could be set aside by that Court. As a matter of fac, the decree of that Court was one of dismissal so far as the applicants were concerned and the only ex parte decree in exigency was the one made by the Court of Appeal. The only Court that could consequently deal with the application, was the Court of Appeal. 8. Two other cases were relied on by the Subordinate Judge in support of his view, namely, Mahammad Sulaiman Khan v. Mahammad Vat Khan ( I. L. R. 11 All. 267 (1888) and Sri Go-bind Sing v. Gangatri Pershad Singh 6 C. L. J. 542 (1907). These cases also are clearly distinguishable, because they merely affirm the doctrine that after the decree of the original Court has merged in the decree of the Court of Appeal, the only Court which is competent to entertain an application for amendment of the decree is the Court of Appeal. These cases also are clearly distinguishable, because they merely affirm the doctrine that after the decree of the original Court has merged in the decree of the Court of Appeal, the only Court which is competent to entertain an application for amendment of the decree is the Court of Appeal. That the doctrine is well-founded on principle cannot be disputed; and it is now supported by the decision of their Lordships of the Judicial Committee in Brij Narayan v. Tejpal Bikram Bahadur I. L. R. 32 All. 295 (1910). Reference was also made to the case of Sarat Chandra Dhal v. Damodar Manna 12 C. W. N. 885 (1908), which was subsequently affirmed on appeal under sec. 15 of the Letters Patent. [Damodar Manna v. Sarat Chandra Dhal 913 C. W. N. 846 (190).. The facts of that case, however, as explained in the decision of this Court in the case of Kumud Nath Roy Chowdhuty v. Rai Jatindra Nath Chowdhury 13 C L. J. 221 0911, do not furnish any analogy to the facts of the present case. 9. In so far as the decision of the learned Judges of the Madras High Court in the case of Sankara Bhatta v. Subraya Bhatta I. L. R. 30 Mad. 535 (1907 is concerned we need only say that it appears to lay down too broadly' the proposition that as soon as an appeal has been preferred against a decree, the authority of the original Court to deal with that decree is completely taken away. As explained in Kumud Nath Roy Chowdhury v. Rai Jatindra Nath Chowdhury 13 C L. J. 221 0911, that position cannot be main-tained either on principle or on the authorities. 10. The result is that the view taken by the Court below cannot be maintained. The Appeal is therefore allowed, the order of the Court below set aside, and the case remanded in order that the application to set aside the ex parte decree may be considered on the merits. The Appellant is entitled to the costs of this Appeal. We assess the hearing-fee at three gold mohurs. The Appeal is therefore allowed, the order of the Court below set aside, and the case remanded in order that the application to set aside the ex parte decree may be considered on the merits. The Appellant is entitled to the costs of this Appeal. We assess the hearing-fee at three gold mohurs. We may add that it has been argued by the learned Vakil for the Respondents that if this application is ultimately successful, a question may arise whether the decree should be set aside also as against the sixth and seventh Defendants and he has contended that in view of the decision of this Court in Mon Mohini Chowdhurani v. Nara Narayan Ray 4 C. W. N. 456 (1899) the Court below cannot possibly set aside so much of the decree as has been dealt with by this Court on appeal. It is not necessary, however, at the present stage, to consider this question. Whether the decree as against the sixth and seventh Defendants, can, under any circumstances, be set aside, and, if so, by which Court, must be left open for consideration, when that contingency arises.