Appeal No 15 of 1974
From the Judgment and order dated 2411973 of the Punjab and Haryana High Court in Civil Revision No 14772
AB Rohtagi A Minocha and Mrs V Minocha for the Appellants in CA No 15 of 1974 and Respondent in CA No 1875 of 1974
687 Rajinder Sachhar KB Rohtagi Praveen Jain SK Dhingra and Baldev Atrey for the Respondents in CA No 151974 and Appellant in CA No 1875 of 1974
RB Datar Kailash Vasdev and Naunit Lal for Respondent No 2 and 3
The Judgment of the Court was delivered by KHALID J
These two appeals arise from the same suit and can be disposed of by a common Judgment
The facts necessary to understand the question involved in the appeals can be briefly stated as follows One Kalu Ram was the owner of 90 kanals of land
He sold this land in favour of three brothers Kewal Ram Chet Ram and Kuldip Ram for a consideration of Rs65000 by a regis tered sale deed dated 1 8 1966
Kewal Ram is residing in Village Badala in Jullunder District
Chet Ram and Kuldip Ram were residing at 71 Windsor Road Forest Gate London E 7 Smt
Ram Lubhai minor daughter of Kalu Ram the vendor filed a suit from which these appeals arise for possession of the land on the ground that she being the daughter of the vendor had superior fight of pre emption as against the vendees who were strangers
Kewal Ram alone was served in the suit
The other two were not served
Substituted service was therefore taken for service on them by publication in a vernacular paper
The suit was decreed on 31 7 1969 against all the three defendants ex parte against Chet Ram and Kuldeep Ram
Kewal Ram filed an appeal against this decree and Judgment
He made his brothers Chet Ram and Kuldip Ram as proforma respondents giving their village address for service
In the appeal also they were served by substituted service
The appeal was heard on 5 1 1971 and was dismissed
On 24 3 1971 Kuldip Ram and Chet Ram filed an applica tion under Order 9 Rule 13 of CPC in the Trial Court for setting aside the ex parte decree against them on the ground that they were neither served in the Trial Court nor in the Appellate Court
This application was resisted by the plain tiff on the ground that the application before the Trial Court was incompetent since the decree had merged in the appellate decree
Evidence was taken and after hearing the parties the Trial Court set aside the entire decree
The Trial Court held that 688 Kuldip Ram and Chet Ram were residing in England and no attempt was made to serve them personally
That being so the application was competent in the Trial Court as they were neither served in the Trial Court nor in the Appellate Court
Against this order dated 101
1972 the plaintiff filed a revision petition in the High Court of Punjab and Haryana as CRP No 147 of 1972
The High Court felt that there was no error of jurisdiction in the order sought to be revised but held that since Kewal Ram had contested the suit there was no ground to set aside the decree against him
On this ground the petition was partly allowed
The decree against Kewal Ram was allowed to stand but was set aside against the other two
Not being satisfied with this order the plaintiff filed an application for review on the ground that the decree for possession by way of pre emption was joint against all the defendants that there was neither specification of the shares in the land for the three different vendees not specification of the purchase price paid by them and that as such the order setting aside the decree in part was bad
For this purpose reliance was placed on a full Bench decision of the Lahore High Court reported in AIR 1945 Lahore 184
Reliance was also placed on the proviso to Order 9 Rule 13 CPC This review petition was dismissed by the High Court by order dated May 30 1973 relying upon the full Bench decision of the Punjab and Haryana High Court in the case of Kartar Singh vs Jagat Singh and Ors ILR 1971 2 Pun
 Har 110
Hence these appeals by special leave the earlier CA 1574 by Kewal Ram and the other CA 187574 by the plaintiff
The learned counsel for the plaintiff contended that the two brothers of Kewal Ram were at all relevant times aware of the pendency of the suit and that the Courts below com mitted an error in setting aside the decree against them
To reinforce this contention he brought to our notice the fact that even in the appeal filed by Kewal Ram the address given of his brothers was the village address
He further submitted that the application under Order 9 Rule 13 made before the Trial Court was incompetent since the decree passed by the Trial Court had merged in the appellate de cree
He feebly put forward a case of complicity between the two brothers to defeat the plaintiff
Kewal Ram who is the appellant in the other appeal contended that the decree was a joint decree and it was impermissible to set aside the decree in part and keep the decree in tact in part
According to him 689 when the decree was set aside against his two brothers it should have been set aside against him also
Since the decree in question is one based on the right of preemption it would have been possible for us to get rid of it and dispose of the appeals by a short Judgment relying upon the Constitution Bench decision of this Court in Atam Prakash vs State of Haryana and Ors  by which decision the Punjab Pre emption Act 1913 was struck down except to a small extent
But that course is not open to us in view of the following observation by this Court in the above said Judgment We are told that in some cases suits are pending in various courts and where decrees have been passed appeals are pending in appellate courts
Such suits and appeals will now be disposed of in accordance with the declaration granted by us
We are told that there are a few cases where suits have been decreed and the decrees have become final no appeals having been filed against those de crees
The decrees will be binding inter partes and the declaration granted by us will be of no avail to the parties thereto
 Since the decree has become final the principle of the decision is not attracted in this case
That takes us to the question whether the application under Order IX Rule 13 before the Trial Court when the matter had been decided by the appellate court is proper
We proceed on the finding that neither Kuldip Ram nor Chet Ram was served either in the suit or in the appeal
A feeble contention was put forward that fraud was practised upon these two persons in not getting service effected on them
We do not propose to consider this aspect of the case since this case was not properly pleaded or proved
For the purpose of this Judgment we accept the conclusions arrived at by the court below that these two persons were not served either in the suit or in the appeal
If so what is the position
It is well settled that when a decree of the Trial Court is either confirmed modified or reversed by the Appellate decree except when the decree is passed without notice to the parties the Trial Court decree gets merged in the appellate decree
But when the decree is passed without notice to a party that decree will not in law be a decree to which he is a party
Equally so in the case of an appel 690 late decree
In this case these two persons were not served in the suit
A decree was passed ex parte against them without giving them notice of the suit
In law therefore there is no decree against them
In the appeal also they were not served
If they had been served in the appeal things would have been different
They could have put for ward their case in appeal and got appropriate orders passed
But that is not the case here
That being so there is no bar for an application by them before the Trial Court under Order IX Rule 13 to set aside the ex parte decree against them
This is the only point that arises in the appeal filed by the plaintiff
The appeal has to fail and is dismissed
The appeal by Kewal Ram is based on the plea that the decree passed by the Trial Court and the Appellate Court against him and his two brothers was a joint and indivisi ble decree and as such the decree cannot be set aside in part by allowing the application under Order IX Rule 13
He pressed into service a full Bench decision of the Lahore High Court reported in 1945 Lahore 184
We do not pause to consider the principle settled in that decision because it has no application to the facts of this case
Here the plaintiff has obtained a decree against Kewal Ram based on the right of pre emption
That decree has to stand so far as Kewal Ram s right in the property is concerned
She will have to work out here remedies either in execution or by a partition suit to get her share in the properties
There is no merit in Civil Appeal No 15 of 1974 either
This appeal is also dismissed
The plaintiff will be entitled to get back two thirds share of the amount of consideration paid for the property from Kuldip Ram and Chet Ram
The parties are directed to bear their costs
SR Appeals dismissed


Summary:
One Kalu Ram was the owner of 90 Kanals of land
He sold this land in favour of three brothers Kewal Ram Chet Ram and Kuldip Ram for a consideration of Rs65000 by a regis tered sale deed dated 181966
Kewal Ram is residing in Village Badala in Jullunder District
Chet Ram and Kuldip Ram were residing at 71 Windsor Road Forest Gate London
Ram Lubhai minor daughter of Kalu Ram filed a suit for possession of the land on the ground that she being the daughter of the vendor had superior right of pre emption as against the vendees who were strangers
Kewal Ram alone was served in the suit
The other two were not served
Substi tuted service was therefore taken for service on them by publication in a vernacular paper
The suit was decreed on 3171969 against all the three defendants ex parte against Chet Ram and Kuldeep Ram
Kewal Ram filed an appeal against this decree and judgment
He made his brothers Chet Ram and Kuldip Ram as proforma respondents giving their village address for service
In the appeal also they were served by substituted service
The appeal was heard on 511971 and was dismissed
On 2431971 Kuldip Ram and Chet Ram filed an applica tion under Order 9 Rule 13 of CPC in the Trial Court for setting aside the ex parte decree against them on the ground that they were neither served in the Trial Court nor in the Appellate Court
The Trial Court 786 accepted the application and set aside the decree passed
Against this order dated 1011972 the plaintiff filed a revision petition in the High Court of Punjab and Haryana as CRP No 147 of 1972
The High Court felt that there was no error of jurisdiction in the order sought to be revised but held that since Kewal Ram had contested the suit there was no ground to set aside the decree against him
On this around the petition was partly allowed
The decree against Kewal Ram was allowed to stand but was set aside against the other two
The review petition filed by Smt
Ram Lubhai was dismissed by the High Court
Hence the appeals by special leave
Dismissing the appeals the Court HELD It is well settled that when a decree of the Trial Court is either confirmed modified or reversed but the Appellate decree except when the decree is passed without notice to the parties the Trial Court decree gets merged in the appellate decree
But when the decree is passed without notice to a party that decree will not in law be a decree to which he is a party
Equally so in the case of an appel late decree
In this case these two persons were not served in the suit
A decree was passed ex parte against them without giving them notice of the suit
In law therefore there is no decree against them
In the appeal also they were not served
If they had been served in the appeal things would have been different
They could have put for ward their case in appeal and got appropriate orders passed
But that is not the case here
That being so there is no bar for an application by them before the Trial Court under Order IX Rule 13 to set aside the ex parte decree against them
689G H 690A B There is no error of law in allowing a joint decree to stand against the person who contested throughout while setting aside the ex parte decree passed against others without serving them personally on admitting the application under Order IX Rule 13 C PC 690C