The appellate court has the jurisdiction to set aside an ex parte decree and remand the case for fresh trial under Section 96(2) of the CPC, and it also has the power to order restitution under Section 144 of the CPC, if the conditions precedent for the applicability of Section 144 are satisfied.

( 1 ) THE facts are eloquent giving rise to interesting questions of law touching jurisdiction and its exercise thereof. The facts lie in a short compass. The appellant laid the suit for possession against four persons including the respondent, alleging that the first defendant is a tenant, defendants 2 and 3 are sub-tenants and the respondent-4th defendant is a trespasser. Summons have been taken to them. It is now found as a fact that the summons have not been served on the respondent, but one Mr. B. Jagal Reddy filed written statement on behalf of defendant no. 1, on December 29, 1987 and vakalath also was signed by him on behalf of the respondent. A memo was filed adopting the written statement on behalf of defendants 2, 3 and 4. The suit was posted for trial on June 27, 1988. On application at the behest of the plaintiff the date of hearing was advanced to March 30, 1988. On that day, an additional written statement was filed admitting the plaint averments; issues were framed and formal trial has been gone through. The suit was decreed on April 26, 1988. E P 3/88 was filed on may 31, 1988, warrant of delivery was issued and possession was taken on June 3, 1988. Against the delivery proceedings, the respondent filed CRP No. 1663/88 under Article 227 of the Constitution; by order dated June 13, 1988, this Court dismissed the C R P observing that serious allegations have been made against the counsel, Presiding Officer and the plaintiff and other defendants. It is stated : these charges, if proved, must be construed to be serious enough and grounds for interference under Article 227 of the Constitution". But the learned Judge was not inclined to go into the merits since there is a right of appeal under Section 96 (2) of the Code of Civil Procedure (Act 5 of 1908), for short, "the Code", and gave the following directions :"if any of those allegations are made out, he (appellate Judge) will set aside the judgment and decree and restore back to the defendants the possession deprived to them in pursuance of the decree. The matter shall be concluded within three months from the date of receipt of this order. "the Appellate Court in A S No. 157/38, by judgment dated August 10, 1968 held that the trial Court did not verify the vakalath which was not signed by the respondent; summons were not served on him; the counsel Mr. Jagal Reddy cannot file vakalath without any summons or signature of his. It further held that :"there is absolutely nothing on record that the appellant was served with suit summons. It is not shown how the lower court accepted the vakalath of Jagal reddy, Advocate when it was not signed by the appellant but was signed by the respondent (first defendant) on behalf of the appellant without showing any authority under which the second respondent could act on behalf of the appellant. It is also not known how Sri Jagal Reddy filed vakalath on behalf of the appellant when it was not signed by the second respondent representing the appellant without being satisfied that the second respondent has authority to sign the vakalath and engage him on behalf of the appellant. This is a very unfortunate case where a decree was passed against the appellant without serving summons on him. "thereby, the Court below set aside the decree and remitted the case for trial afresh after giving an opportunity to the respondent (appellant therein) to file written statement and adduce evidence. Consequent on the order passed in the C R P. directed the trial Court to restitute, under section 144 of the Code, possession of the property to the respondent on making an application by him. Against the appellate decree, the C M A has been filed.

( 2 ) IT is now claimed by the respondent that pursuant to the restitution application, he was inducted into possession on september 19, 1988, but the C M A was filed and interim stay was granted on september 29, 1988. The first contention of Sri Narasimhachary, learned Counsel for the a