Judgment :- 1. The counsel for the revision petitioners and the counsel for the respondent have endeavoured their best to enlighten the court on a point of law on which different views have been expressed by the High Courts in India. The question is whether an application under Order IX R.13 CPC. for setting aside an ex parte decree, when that decree has been confirmed by the appellate court, is to be filed before the appellate court or the trial court that set it ex parte. 2. Now the short facts: O. S.427 of 1971 on the file of the Principal Munsiff of Neyyattinkara was one for partition of the plaint schedule properties. At the instance of the 34th defendant an appeal, A.S. 596 of 1975 on the file of the District Court, Trivandrum, was filed against the preliminary decree passed on 17-11-1975; that was, later, transferred to the Court of the Subordinate Judge, Trivandrum, in which court it was re-numbered as A.S. 292 of 1977. One of the defendants, Sankara Pillai, died during the pendency of the suit, and his legal representatives (wife and daughter) were impleaded as defendants 26 and 27. They were allotted as per the preliminary decree 31 1/4 cents of land in C schedule to the decree. The said Sankara Pillai had, even before the filing of the suit, as per Ext. B-10 sale deed dated 11-8-1969. sold four cents out of the share to which he was entitled, to defendant No. 37 (respondent No 36 in the appeal) who happened to be declared ex parte before the passing of the preliminary decree on 11-7--1975. When the said appeal was thus pending, the said 37th defendant, who is the first respondent herein, filed I. A. 1044 of 1976 on 24-5-1976 before the Appellate Court for setting aside the ex parte decree stating that he was serving the Central Reserve Police at Shillong. and it was only on 3-5-1976, on his coming home on leave, that he came to know about the decree, no notice of the suit having been served on him. This application was dismissed by that court on 17-11-1977, on which date the appeal itself also was dismissed. and it was only on 3-5-1976, on his coming home on leave, that he came to know about the decree, no notice of the suit having been served on him. This application was dismissed by that court on 17-11-1977, on which date the appeal itself also was dismissed. In the order dismissing the application for setting aside the ex parte decree the court had stated that the application was not maintainable before that (appellate) court, besides making certain remarks touching the merits of the application. After the dismissal of the appeal and of I. A. 1044 of 1976 on 17-11-1977 as mentioned above, the petitioner filed in the appellate court on 15-12-1977 E. A. No. 9584 of 1977 to set aside the ex parte decree against him stating inter alia that he had earlier filed an application for setting aside the ex parte decree in that very same court when the appeal was pending, under wrong advice. There was a delay of one year and seven months in filing the application, and to condone this E. A No. 9585 of 1977 was filed. The court below having allowed both the applications, this revision has been preferred by defendants 26 and 27 who were counter-petitioners 2 and 3 in the execution application, the first counter petitioner being the plaintiff in the suit. It is seen ordered on 21-2-1980 that none need be recorded as the legal representatives of the 2nd respondent in the C.R.P, (the plaintiff) who died pending the C.R.P 3. The counsel for the petitioners submitted that having filed earlier. I.A. 1044 of 1976, which ended in the dismissal thereof, first respondent (D37) was not entitled to invoke the jurisdiction of the appellate court again for the very same purpose. He would also submit that though towards the end of the order dated 17-11-1977 it was mentioned that the application was not maintainable in that court, the dismissal of the application was on merits also after considering all aspects of the matter. He also pointed that if the respondent was actually aggrieved by the ex parte decree, what he ought to have done was to move the trial court which passed the decree seeking a stay of hearing of the appeal, pending disposal of his application for setting aside the ex parte decree. 4. He also pointed that if the respondent was actually aggrieved by the ex parte decree, what he ought to have done was to move the trial court which passed the decree seeking a stay of hearing of the appeal, pending disposal of his application for setting aside the ex parte decree. 4. It is not seriously disputed before me by the counsel for the petitioners that though an appeal filed by some other party to the suit was pending before the appellate court, it was before the trial court an application for setting aside the ex parte decree under Order IX R.13 C.P.C. was to be moved as the decree of the trial court continues to be the decree of the primary court until it is reversed, confirmed or varied in appeal. That being so, the dismissal of the application I A. 1044 of 1976 on 17-11-1977 by the appellate court was perfectly justified. May be that some casual observations regarding lack of bona fides or some comments on certain adverse circumstances appearing against the applicant, was made in the order dated 17-11-1977, by which the earlier application for setting aside the ex parte decree was dismissed. That, however, could not be treated as a dismissal on merits for the simple reason that that application was not maintainable in that court at that time, and, therefore, whatever remarks or observations that were made were only to be treated as non est. 5. This takes us to the more important point whether after the dismissal of the appeal A. S.292/77 (previously A S.596/75) filed by the 34th defendant, the first respondent had the right to move for setting aside the exparte decree, and if so, which was the court in which he was required to file the application for that purpose. That a right of appeal under S.96(2) C.P.C. also was available to the first respondent, was not a ground for refusing relief in an application under Order IX R.13 CPC. it he was entitled to have the ex parte decree set aside in law and on facts. 6. Incidentally the question whether there was sufficient ground for condoning the delay also has arisen. Before dealing with the main contention regarding the maintainability or otherwise of the application before the appellate court for setting aside the ex parte decree, the question regarding the condonation of delay could be disposed of. 6. Incidentally the question whether there was sufficient ground for condoning the delay also has arisen. Before dealing with the main contention regarding the maintainability or otherwise of the application before the appellate court for setting aside the ex parte decree, the question regarding the condonation of delay could be disposed of. The respondent's case appears to be that he was in C.R.P., serving during the material time in Shillong, he had no notice of the suit, and it was only on 3-5-1976 when he came home that he knew about the filing of the suit and of the passing of the ex parte decree against him. It was thereafter that he filed I.A. 1044 of 1976, The dismissal of that application made him realise that he was not properly advised in moving the appellate court for that purpose at that stage; and, therefore, an application under Order IX R.13 C P. C. supported by his affidavit dated 7-12-1977 was filed in the appellate court on 15-12-1977. The counsel for the petitioners took serious objections to the order condoning the delay passed by the court below. His submission is that it was his (Ist respondent's) mother who had produced Ext. B-10 sale deed in court, and as such it was difficult to believe that she did not inform the first respondent (D 37) about the institution and progress of the suit. He also found fault with the 1st respondent for not having stated in the affidavit or the petition the number of days of delay Even assuming that he came to know about the filing of the suit only on 3-5-1976 as averred in the affidavit, it was, according to him, the trial court not the appellate court, that he should have moved for setting aside the ex parte decree. 7. On a consideration of the materials placed before it, the appellate court chose to believe the version given by the first respondent herein and found that it was a fit case to condone the delay in filing the application for setting aside the ex parte decree. I do not think that this court sitting in revision would be justified in interfering with the discretion that has been exercised by the court below on a proper consideration of the material placed before it. In my view also, there was sufficient justification for condoning the delay. 8. I do not think that this court sitting in revision would be justified in interfering with the discretion that has been exercised by the court below on a proper consideration of the material placed before it. In my view also, there was sufficient justification for condoning the delay. 8. On the main question, the emphasis laid by the counsel for the petitioners during the course of his arguments was on his contention that it was the trial court that had jurisdiction to entertain and decide an application under Order IX R.13 C.P.C., and, therefore, the appellate court had committed a serious error in allowing the application and setting aside the ex parte decree. For this point, reliance was placed by the counsel on various decisions of the Madras, Calcutta, Allahabad, Peshwar and Mysore High Courts. They are Palaniappa v. Subramania (AIR. 1922 Madras 33 (D. B)), Pethaperumal Chettiar v. /. T. Commr. (A.I.R. (31) 1944 Madras 76), Anwar Ullah v. Emperor (AIR. 1934 Ali 173), Gulam Fatima v. Bilkis Jan (AIR 1946 Peshwar 7), Mira Rani v. Namita Goswami (AIR. 1977 Cal. 372) and Official Receiver, Bangalore v. Sellamma (AIR. 1973 Mysore 154 (D.B.)). According to these decisions, the counsel submitted, the trend of judicial opinion was that where an ex parte decree happened to be confirmed or the appeal dismissed, or allowed to be withdrawn by the appellate court, the forum for applying for setting aside the ex parte decree under Order IX R.13 C. P. C. was the trial court, not the appellate court. The reasoning is stated to be that on the wording of Order IX R.13 C.P.C. it was that court which passed the ex parte decree that was competent to set aside that decree. This reasoning, with due respect, does not appeal to me to be correct, as it overlooks the basic principle that once the appellate court confirms, varies or reverses the decree of the trial court, the trial court decree stands superseded. 9. As against this, the counsel for the first respondent has contended that what the court below did was perfectly valid both in law and on facts. It is his submission there was no dispute that during the material time the respondent was in or about Shillong in Thripura where he was serving the CRP. 9. As against this, the counsel for the first respondent has contended that what the court below did was perfectly valid both in law and on facts. It is his submission there was no dispute that during the material time the respondent was in or about Shillong in Thripura where he was serving the CRP. His interest in the subject-matter of the suit was confined to four cents out of 31 1/4 cents to which his assignor Sankara Pillai, who executed Ext B-10 sale deed in his favour, was entitled; and on the death of the said Sankara Pillai that right had devolved on the revision petitioners, defendants 26 and 27 (counter petitioners 2 and 3). He submitted that by setting aside the ex parte decree, having relevance to four cents of land, due to the first respondent from the revision petitioners (D26 and D27), in terms of Ext D-10 sale deed, the court below exercised its power in furtherance of justice based on sound principles of law. He relied on a decision of the Tranvancore Cochin High Court in Aliamma v. Ouseph (1954 KLT. 322) and a decision of the Madhya Bharat High Court in Balbhim Rao v. Alkh Murarilal (AIR. 1954 Madhya Bharat 4). Note 11 at page 240 of Chetly on C P.C., Vol. III, (9th Edn) also was cited by him. 10. It is the well accepted principle that when a decree is confirmed, varied or reversed by a superior court the decree of the trial court merges with that of such superior court. There should absolutely be no doubt that where the decree has been varied or reversed by the superior court, it is only such superior court, that has the jurisdiction to set aside an exparte decree passed by the trial court as otherwise it would mean that even after a superior court having reversed or modified the decree of the trial court, ignoring that fact the trial court granted as order for setting aside its earlier decree which had already got merged with that of the superior court. The most crucial point which had arisen in this case before the court below was, where the appeal filed by one of the defendants namely, the 34th defendant, to which the first respondent herein also was a party, ended in dismissal of the appeal whether it was that court or the trial court itself which had the right to entertain and deal with an application for setting aside the ex parte decree in respect of the first respondent. The Privy Council in Brij Narain v. Tejpal Bikram (37 Indian Appeals 70) bad taken the view that where a decree got merged with the decree of the appellate court it was only that (appellate) court which had the right to amend that decree Applying this principle and respectfully agreeing with the decision of the Travancore Cochin High Court in Aliamma v. Ouseph (1954 KLT. 322) and of the Madhya Bharat High Court in Balbhim Rao v Alkh Murarilal (AIR. 1954 Madhya Bharat 4) lam of the view that the proper forum where an application for setting aside an ex parte decree under Order IX R.13 is to be moved is the appellate court with whose decree the decree of the trial court got merged, irrespective of the fact that it was confirmed, varied or reversed by the decree of the appellate court. The counsel for the revision petitioners submitted that the Travancore Cochin High Court in a later decision in Muhammed Kannu Mytheen Kattuvava v. Subramania Pillai Velayudhan Pillai (1955 KLT. 58) had taken the view: "Where a defendant against whom an ex-parte decree is passed is not joined as a party to the appeal preferred by other parties to the suit, and the appellate court does not adjudicate upon his case, the ex-parte decree against him does not merge in the decree of court of appeal so as to preclude him from applying under 0.9, R.13 CPC. to the court which passed the ex-parte decree to set aside the ex-parte decree." In as much as the admitted fact in this case is that the first respondent herein, who was the 37th defendant in the suit, was very much a party to the appeal filed by the 34th defendant, the dictum laid down by the Travancore Cochin High Court in the above decision has no application, whatsoever. For the foregoing reasons, I should hold that the revision is misconceived, and, therefore, liable to be dismissed. Accordingly the revision is dismissed; however, in the circumstances of the case I would direct the parties to bear their respective costs in this revision.