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No doubt when a decree is attacked by way of appeal to a superior court, if the decision of the court of appeal affirms that of the court of first instance, the original decree becomes merged in the decree of the court of appeal. But the application of this general principle may be modified by special circumstances. Here, as we have explained, the decree of the primary court was challenged on behalf of the contesting defendants. They assailed the decree only in so far as they themselves were concerned and that is conclusively evidenced by the circumstances that they did not join the other defendants as parties to the appeal. When, therefore, the appeal was dismissed, and the decree of the court of first instance was affirmed, it must be taken that the decree of the primary court was merged in the decree of the appellate court, only in so far as the original decree affected the two contesting defendants. In so far as the decree affected the other defendants who had not entered appearance, the court of appeal was not invited to consider the. matter and to pronounce any judicial opinion thereupon." His Lordship, therefore, held -that the application was maintainable. Mr. Justice Carnduff was a party to this judgment. These observations apply exactly to this case. I may here also refer to an earlier case decided" by a Bench of three Judges in the Calcutta High Court, Manomohini Chawdhrani v. Nara Narayan Rai (1900) 4 C.W.N. 456. In that case, the decree against the several defendants was not a joint decree, A disposal of the appeal of some of the defendants was regarded as not precluding the other defendants from applying for a re-hearing under Section 108 to the court of first instance.

18. The only other case in this Court is the case of Mathura Prasad v. Ram Charan Lal (1915) I.L.R. 37 All. 208. The case there was that of a suit for sale. The decree was made after contest against some of the defendants and ex parte against the others. One of these persons against whom the decree was made ex parte applied under Rule 13 of Order IX for a re-hearing. In the meantime, some of the other defendants who had contested the suit preferred an appeal. When the application for re-hearing came up for disposal it was found that the record of the case had gone up to the appellate court. The case was postponed from time to time and came up again after the return of the record from the court of appeal after the disposal of the appeal. The court below held that the decree of the first court in that case had merged in that of the court of appeal, and that the application was, therefore, not maintainable. This view was affirmed by this Court in appeal. In the course of the argument of the case as reported I noted that the learned vakil for the appellant in that case did not urge that his client was no party to the appeal in the High Court and hence the decree against him did not merge in the decree of the appellate court. I, therefore, examined the record of the appeal in this Court (First Appeal No. 424 of 1911, decided on the 24th of February, 1913). I find that Mathura Prasad, the applicant, under Rule 13 of Order IX, was made a party respondent to the appeal in the High Court. The decree of the High Court, therefore, was binding upon him. This case, therefore, goes no further than the case in 7 A. L. J., p. 598.