( 1 ) THE decision of this rule obtained on February 15, 1965, by a thika tenant, Hari Nanday Roy by name, under Article 227 of the Constitution turns on the question : when the ex parte order of the thika controller under Section 5 of the Calcutta Thika Tenancy Act 2 of 1949 ejecting the thika tenant, on the ground that the term of his lease has expired within Section 3, clause (vi) ibid, has been confirmed in appeal by an appellate Tribunal under Section 27 ibid, does the Controller cease to have jurisdiction to hear the tenant's petition under Order 9, Rule 13, of the Procedure Code for setting aside the same ex parte order? ( 2 ) THE learned Controller, by his order No. 59 dated December 7, 1964, answered the question in the affirmative and refused to set aside the ex parte order he had entered on February 22, 1964, in proceedings under Section 5 read with Section 3, clause (vi), initiated by the landlords on July 1, 1958. So did the learned District Judge qua appellate authority in a manner by summarily dismissing, on January 14, 1965, the appeal against the Controller's order aforesaid. Hence this rule. ( 3 ) MR. Sinha, appearing for the petitioner, contends that, in view of Section 27, sub-section 4, of the Act, making it obligatory for the District Judge to send for the record of the case from the Controller, he has no jurisdiction to dismiss the appeal summarily, as he has done. This contention appears to be sound. It is now well held that the appellate authority, as the District Judge is, in deciding an appeal under Section 27, is not a Court but a persona designata. Its power are the powers conferred on it by the Act itself and the rules made thereunder. Mamata Ghosh v. Mrs. Charu Chandra Mandal, (1956) 60 CWN 1032, a cas Mr. Sinha cites. Necessarily, therefore, Order 41 of the Procedure Code does not apply of its own force to an appeal under Section 27. Order 41 not applying, rule 11 thereof, containing the law for summary dismissal of an appeal, does not apply too. On top of that, neither the Act nor the rules provide for a summary dismissal of an appeal. Necessarily, therefore, Order 41 of the Procedure Code does not apply of its own force to an appeal under Section 27. Order 41 not applying, rule 11 thereof, containing the law for summary dismissal of an appeal, does not apply too. On top of that, neither the Act nor the rules provide for a summary dismissal of an appeal. For what an appeal under Section 27 is like, Paran Chandra Porel v. Hari Priya Dassi, (1958) 62 CWN 518, which also Mr. Sinha refers me to. The conclusion therefore follows that the District Judge qua appellate authority has overstepped the limits of his jurisdiction by summarily dismissing the appeal. ( 4 ) BUT only because this is so, I am not bound to interfere under Article 227 of the Constitution; in particular, when I am convinced, upon the whole of the materials I have had put before me that it will be a barren interference, only prolonging the life of a more than eight-year-old lis, the history and progress of which so far has been so discreditable to our legal proceedings. As Mr. Lala Hemanta Kumar, appearing for the opposite party landlords, submits : is it worth while to interfere only for the sake of interference? ( 5 ) MUCH the most important fact is the clear dismissal on May 16, 1964, of the appeal : miscellaneous appeal No. 208 of 1964, preferred by the tenant petitioner against the Controller's ex parte order dated February 22, 1964, for his ejectment. With the dismissal of the appeal by the appellate authority, the Controller's ex parte order had no separate entity. It was merged in the appellate order. When therefore the Controller proceeded to try the petition under Order 9, Rule 13, for setting aside the ex parte order, on November 28, 1964, - some 6 months and 12 days after the dismissal of the appeal on May 16, 1964 - there was no ex parte order of his to be set aside. There was then only the appellate order of May 16, 1964, in which the ex parte order dated February 22, 1964, of the Controller was merged. There was then only the appellate order of May 16, 1964, in which the ex parte order dated February 22, 1964, of the Controller was merged. ( 6 ) IN having dismissed the appeal so on May 16, 1964, the learned Subordinate Judge qua appellate Tribunal under Section 27 of the Thika Tenancy Act found as follows : a. Hardly any point was made out for reversal of the ex parte order of the Controller who was bound to allow the landlord's case for ejection of the tenant because of the expiry, prima facie, of the term of the 5-year lease : January 18, 1952 to January 17, 1957 - exhibit 1. B. Going by the record there was no sufficient cause for non-appearance of the thika tenant, the petitioner before me, on February 22, 1964, when the ex parte order for eviction was recorded against him by the Controller. ( 7 ) THESE being the clear findings of the appellate Tribunal - findings on the foot of which it dismissed the appeal against the ex parte order of the Controller what remained for the Controller to set aside? In deciding the tenant's petition under Order 9 Rule 13, of the Procedure Code for setting aside the same ex parte order against which the appeal failed as above, would he go through the gamut over again, arrive at a finding, if necessary, inconsistent with that of the appellate Tribunal and thus himself sit in appeal over his own appellate Tribunal? I confess, the whole thing appears to be inconceivable and intolerable too. ( 8 ) BUT, Mr. Sinha contends, the appoint Tribunal did not stop recording the two findings just noticed : paragraph 6 ante. That, indeed, is true. The appellate Tribunal, in its wisdom went a little more and made two observations, one being in the nature of a direction, which are at the root of the trouble to be seen here :a. The proceedings which pend before the Controller under Order 9, Rule 13 are "the proper proceedings in which the ground for absence of the thika tenant should be thrashed out", (as if to carry the lis in appeal under Section 27 is to resort to improper proceedings ). B. The Controller "should allow an opportunity to the present appellants (the sole appellant Hari Nandan?) for proving their (sic) case under Order 9 Rule 13, Civil Procedure Code before execution order the order of eviction is proceeded. ( 9 ) AN execution was then pending too before the Controller. ( 10 ) THESE are the two observations upon which Mr. Sinha strongly relies. More, in such observations he sees a clear mandate by the appellate Tribunal upon the Controller to proceed with the tenant's application under Order 9, Rule 13 - a mandate which, Mr. Sinha complains, the Controller has flouted. I, however, see in these observations, though well-meaning, the acme of irrelevance and absence of any legal basis. The appellate Tribunal dismissed the appeal on two substantial grounds. One, hardly any point was made out for reversal of the ex parte order. Two, there was no sufficient cause for non-appearance of the tenant on February 22, 1964 when he suffered an ex parte order to be made against him. And the power of the appellate Tribunal ceased, upon such dismissal, to make the observations it did. The appellate Tribunal no doubt thought that to make such observations it had a power which however, it did not possess, once it had dismissed the appeal, as it did, in fact and at law. Indeed, in the context of the dismissal of the appeal, and that too on merits, these become wholly idle observations beneath notice in any Court of law or Tribunal. Placed in such an unenviable predicament, the Controller did no more than interpret the order of the appellate Tribunal which it was his duty to do. Why accuse him then of insubordination and of flouting the mandate of a higher Tribunal? ( 11 ) I realize, it may have been unfortunate for the tenant to have been misled by such observations. Hence, I have taken pains to satisfy myself if there is any substance in the claim he has been prevented from further prosecuting. The examination of the whole of the record completely satisfies me that his claim is destitute of any substance whatever. Even were it otherwise, I am not sure if I could have suffered a hard case to make a bad law. But, as it is, I am relieved to find that I have nothing like a hard case before me. The examination of the whole of the record completely satisfies me that his claim is destitute of any substance whatever. Even were it otherwise, I am not sure if I could have suffered a hard case to make a bad law. But, as it is, I am relieved to find that I have nothing like a hard case before me. On the contrary, hardship, if any, is the other way round. Let me embody some of the results of my inspection of the record under suitable headings as follows :a. First lease : January 18, 1947, to January 17, 1952. A lease as this is recited in the second lease, exhibit 1, also for a 5-year term : January 18, 1952 to January 17, 1957, on the expiry of which the landlords initiated on July 1, 1958, the present proceedings, and out of which this rule arises. It is traversed too in the tenant Hari Nandan's written objection : paragraph 6. B. Stipulation in the first lease. Not recited in the second lease, but averred in the sixth paragraph of the written objection, are certain terms said to have been incorporated in the first lease : (i) for the first three years, that is to say, for 8. 1. 47 to 17. 1. 48 to 17. 1. 49 and 18. 1. 49 to 17. 1. 50, rent agreed to. . . . . Rs. 50 a month; (ii) for the last two years, that is, for 18. 1. 50 to 17. 1. 51 and 18. 1. 51 to 17. 1. 52, rent agreed to Rs. 60 a month; (iii) on the expiry of the first lease, Hari Nandan would continue to be the tenant at. . . . Rs. 70 a month. C. Second lease : January 18, 1952 to January 17, 1957. Through undue influence and threat of eviction, the landlords, the opposite party before me, got this lease executed by Hari Nandan, the tenant petitioner, on a rent of Rs. 120 a month and interest too: vide paragraph 6 again of the written objection. ( 12 ) NO more need be notice now, Grant all that is alleged in the written objection to be true. So what? That will not prolong the term of Hari Nandan's lease a day beyond January 17, 1957. 120 a month and interest too: vide paragraph 6 again of the written objection. ( 12 ) NO more need be notice now, Grant all that is alleged in the written objection to be true. So what? That will not prolong the term of Hari Nandan's lease a day beyond January 17, 1957. Conscious of that, Hari Nandan pleased in the third paragraph of his written objection that he was "admitted to be a tenant" by the landlord, "since the expiry" of the second lease. Exactly when? How ? By having received rents? I get no answer to these questions either from the record or from Mr. Sinha, though this is a matter. Mr. Lala Hemanta Kumar makes a specific point of. To plead is not to prove. True it is that the stage of proof was not reached before the Controller, thanks to postponement after postponement Hari Nandan reveled in. The Controller calculates it as five. But I must be told how it is to be proved I have not been told so. Thus, an averment as this contained in the third paragraph of Hari Nandan's written objection must be regarded as barren. Still, to this day Hari Nandan is where he is and where he should not have been, under the law (Section 3, clause vi of the Thika Tenancy Act) as much as under the contract, exhibit 1, a day beyond January 17, 1957. Which means that he has had a extension of his lease by 9 years and 7 months, mainly because of the tortuous progress of this lis before the Controller who, after he had accepted Hari Nandan's written objection on January 24, 1959, allowed the simple matter to drag its slow length with only seventeen postponements, covering a period of little less than four years for March 10, 1959, to February 13, 1963. And what for? Only for setting a date for peremptory hearing, as no chance there was of taking it up within two months. This is a state of affairs about which it is difficult to speak with becoming restraint. Be that as it may, due to law's delay, Hari Nandan is still on the land the lease of which came to an end on January 17, 1957. If he has yet to reach his satiety, he will not reach it ever. This is a state of affairs about which it is difficult to speak with becoming restraint. Be that as it may, due to law's delay, Hari Nandan is still on the land the lease of which came to an end on January 17, 1957. If he has yet to reach his satiety, he will not reach it ever. On the other hand, the landlords who are the true owners of the land, have been kept back from what is theirs, all these years. So, which way lies hardship? ( 13 ) MR. Sinha has been good enough to cite certain authorities. In my judgment they do not reach the case in hand. Still I notice them as I have to. ( 14 ) IN T. K. Parasupattar v. T. K. Venkatachala Pattar, AIR 1916 madras 421, what surprised Seshagiri Aiyar and Napier, JJ. was the attitude of the subordinate Judge criticizing a judgment of Oldfield, J - a judgment the parties chose not to appeal against - a judgment by which it was held that exhibits A and B were not binding on the parties. Worse still, the Subordinate Judge was presumptuous enough to pass a decree in terms of just that : exhibits A and B which, Oldfield, J. held, were not binding on the parties. Nothing like that can be predicated of the Controller here. He did no more than go by the judgment of the appellate Tribunal dismissing the appeal. If he had entered into the application under order 9, Rule 13, on merits, he would have laid himself open to the charge of having ignored the dismissal of the appeal by the appellate Tribunal. As a matter of law, he did only that which could be done in the circumstances. Upon dismissal of the appeal by the appellate Tribunal, it was bereft of any power whatever to direct anything more stultifying its own appellate order of dismissal. As a matter of law, he did only that which could be done in the circumstances. Upon dismissal of the appeal by the appellate Tribunal, it was bereft of any power whatever to direct anything more stultifying its own appellate order of dismissal. Tarini Charan Sarkar v. Bishun Chand, AIR 1917 PC 111, emphasizes the abundant power given to the Court of appeal by Sections 107 and 151 of the Procedure Code 5 of the 1908 and Order 41, Rule 33, of the same statute, to mould its decrees or orders, in accordance with the requirement of the case, and that too in answer to the contention that the Court of appeal had no power to vary the order made in the mortgagee Kishun Lal's suit, though he did not request such variation. This is no authority for the proposition that a Court of appeal can dismiss an appeal from an ex parte order and yet direct the Court of the first instance to proceed with the application under Order 9, Rule 13, touching the same ex parte order. No Court of appeal can order so without committing suicide. Indeed, the order dismissing such appeal necessarily excludes an order directing the rehearing of the same matter. In P. C. Muthu Chettiar v. Narayanam Chettiar, AIR 1928 Madras 528, an order dated October 11, 1921, dismissing an execution petition, filed a few days before the expiry of 12 years from the date of the decree, was made the subject of a civil revision petition presented to the High Court on March 6, 1926, that is to say, considerably over four years after the order was made. And still Srinivasa Ayyangar, J. Wallace, J. agreeing, granted relief holding inter alia that, in exceptional circumstances as the case revealed, mere lapse of time was hardly a ground for rejecting a revision petition and that the revisional jurisdiction was not confined only to applications made by parties, though as a matter of practice the jurisdiction was exercised so, the clear implication being that the High Court could act even suo muto in exercise of its revisional jurisdiction. One such exceptional circumstances was that the exeting Court ordered the filing of sale papers by October 11, 1921, but dismissed the petition on the forenoon of October 11, 1921, for the non-filing of such papers, though a good part of October 11, 1921, then still remained. One such exceptional circumstances was that the exeting Court ordered the filing of sale papers by October 11, 1921, but dismissed the petition on the forenoon of October 11, 1921, for the non-filing of such papers, though a good part of October 11, 1921, then still remained. Relying on this authority, Mr. Sinha asks me to put right the incongruous order dated May 16, 1964; of the appellate Tribunal in miscellaneous appeal No. 208 of 1964 which, he says, has led to the present impasse. The least that I can say is that I do not feel overborne by the facts before me, as their Lordships of the Madras High Court felt overborne by the facts before them. Then, it beats me why I should resort to such extraordinary course to prolong the stay of apparently a rightless one - and he has been staying without any manner of a right for nine years and more - and thereby to prolong the agony of the rightful ones, the landlords, by keeping them away from their own land. In (Rai) Jaintdra Nath Chowdhury v. Uday Kumar Das, AIR 1931 PC 104, on February 16, 1931, the Privy Council recommended the alteration of a former order in Council dated December 17, 1924, which by inadvertence did not give effect to the intention of the Board as expressed in their judgment. The undoubted jurisdiction of the Privy Council to recommend such alteration was exercised in order not to defeat the manifest rights of a party which were intended to be effectuated by the Board's former decision. It defeats me how I can translate this decision to the case in hand. In the first place, I find no inadvertence. I find instead the clearest intention on the part of the appellate Tribunal to dismiss on merits the former appeal : miscellaneous appeal No. 208 of 1964 : which it did on May 16, 1964. In the second place, what is clear from the aforesaid appellate order is not manifest right, but manifest absence of right, on the part of Hari Nandan, to prosecute further his application under Order 9, Rule 13, well-meaning observations of the appellate Tribunal notwithstanding observations which can receive no effect, the appeal having been dismissed. In the second place, what is clear from the aforesaid appellate order is not manifest right, but manifest absence of right, on the part of Hari Nandan, to prosecute further his application under Order 9, Rule 13, well-meaning observations of the appellate Tribunal notwithstanding observations which can receive no effect, the appeal having been dismissed. In the third place, it is said, as has been and may be said, the appellate Tribunal's intention also was that the application under Order 9, Rule 13 should go on before the Controller, the obvious answer it that such an intention is not only unknown to law but also militates against law which is : once the appeal from an ex parte Order fails on merits, there remains nothing in that order to be set aside by the primary forum whose order it was. Surely nothing like this can be said of the Privy Council decision in (Rai) Jatindra Nath Chowdhury's case (supra), Mr. Sinha relies upon. Equally ineffective appears to be Somasundaram Pillai v. Muthumanicka Nadar, AIR 1932 Madras 714, where Aanatakrishna Ayyar, J. regularized, in exercise of his powers of revision, the proceedings in the Munsiff's Court by directing that the plaintiffs, who were allowed to withdraw their suit with liberty to sue afresh, would pay the cost of defendant No. 1 - costs which were not ordered by the Munsiff, but ordered instead by the District Judge in appeal though no appeal lay. What shall I regularize here and how? If I say that the appellate Tribunal's order of May 16, 1964, in so far it wants the tenant's petition under Order 9, Rule 13, to be heard by the Controller, should receive effect, where will go the rest of its order dismissing the appeal on merits? And it is an order which the tenant has not moved against. No doubt, in appropriate cases suo motu I can set right a wrong order. But I see nothing wrong in the dismissal of the appeal on merits. On the contrary, I consider it to be right. In S. A. S. Subbiah Iyer v. Official Receiver, Tinnevelly, AIR 1933 Madras 25, Pandalai, J. directed that an order of adjudication adjudicating the estate of a deceased debtor should be read, understood and given effect to as if the debtor himself had been adjudicated. In coming to such conclusion, the learned Judge observed :". . In S. A. S. Subbiah Iyer v. Official Receiver, Tinnevelly, AIR 1933 Madras 25, Pandalai, J. directed that an order of adjudication adjudicating the estate of a deceased debtor should be read, understood and given effect to as if the debtor himself had been adjudicated. In coming to such conclusion, the learned Judge observed :". . . . . after all, the language used by every Court is the vehicle of its thought and every Court is entitled to full faith and credit for its orders being understood in the way it was intended. "a passage upon which Mr. Sinha relies. In rendering the judgment in miscellaneous appeal No. 208 of 1964 what did the appellate Tribunal intend? First : dismissal of the appeal on merits. Second : prosecution still of the application under Order 9, Rule 13. The first intention having been carried out - and carried out it must be - little remained in the second intention to receive effect. Pandalai, J. had nothing like it before him. (9) S. N. Mullick v. Ganga Gope, AIR 1925 Patna 534, is a converse case where also the defendant, like the petitioner before me, applied under Order 9, Rule 13, for setting aside the ex parte decrees recorded against them after their prayer for a postponement was refused, and preferred appeals too against the ex parte decrees. On October 3, 1923, the Munsiff rejected the applications under Order 9, Rule 13 : a decision which was not appealed against. On February 23, 1924, however, the District Judge allowed the appeals from ex parte decrees and remanded the suits for rehearing on merits. Ross and Kulwant Sahay, JJ. upheld the order of the District Judge on the ground of improper refusal by the Munsiff of an adjournment on the day when the ex parte decrees were entered, apart altogether from any question of sufficiency or insufficiency of cause for non-appearance on that date. A decision as this can be of little help to the petitioner before me. The last case Mr. A decision as this can be of little help to the petitioner before me. The last case Mr. Sinha cites is Ethiraja Mudali v. Muthu Reddy, AIR 1961 Madras 410, where certain directions given by Mack, J. while dismissing a second appeal, against a judgment and decree of the lower appellate Court directing a remit, were questioned in a subsequent second appeal which showed that both the Courts below had governed themselves by the directions, as indeed they were bound to. Balakrishna and Jagadisan, JJ. found that the scope of an order made in an appeal against an appellate order of remand was nothing like so limited, and observed, in the background of the real question which Mack, J. had to decide :"naturally he (Mack, J.) had to give directions in that regard. Those directions together with the final order formed one piece and they cannot be dissected. The fallacy. . . . lies in the assumption that the order of Mack, J. consists of two severable parts whereas it is not really so. "but here the appellate order dated May 16, 1964, of the Tribunal in miscellaneous appeal No. 208 of 1964 can be dissected and does consist of two severable parts, mutually exclusive of one another, - one part dismissing the appeal from the ex parte order on merits and another expressing a wish that the Controller should give an opportunity to Hari Nandan to prove his case under Order 9, Rule 13, for setting aside the same ex parte order. The first part receiving effect - as it must - the second part fails in effect. The two cannot co-exist. ( 15 ) THESE are all the cases Mr. Sinha assists me with. For the principle I have gone by : that once the first Tribunal's ex parte order for eviction is confirmed in appeal by the appellate Tribunal, there is nothing further in the aforesaid ex parte order to be set aside by the primary Tribunal, Mr. ( 15 ) THESE are all the cases Mr. Sinha assists me with. For the principle I have gone by : that once the first Tribunal's ex parte order for eviction is confirmed in appeal by the appellate Tribunal, there is nothing further in the aforesaid ex parte order to be set aside by the primary Tribunal, Mr. Lala Hemanta Kumar has referred me to - (i) Lal Brij Narain and Kunwar Tejbal Bikaram Bahadur, (1910) 37 37 IA 70 : 14 CWN 667, a clear authority on the point that the Court of the first instance has no jurisdiction to amend its decree after it has been affirmed by the Court of appeal; (ii) Dhonai Sardar v. Tarak Nath Chowdhury, (1910) 12 CLJ 53, where it has been held that a primary Court's decree, which is one and indivisible, having been affirmed by the appellate Court, it is not within the jurisdiction of the said primary Court to set it aside under Section 108 of the old Code (corresponding to the present Order 9, Rule 13), even at the instance of a defendant against whom the de was ex parte; and (iii) Monomohan Kundu v. Nripendra Nath Nandi, (1937) 41 CWN 1278, where Nasim Ali and Edgley, JJ. hold that after determination by the appellate Court of the appeal against an ex parte decree by the trial Court, the decree of the trial Court cases to exist and that if the trial Court's decree is affirmed in appeal, it merges in the decree of the Court of appeal, subject to certain exceptions which do not bulk large here. Having regard to the foregoing considerations, I find no substance in the rule which I discharge with costs. Rule discharged without costs.