The main legal point established in the judgment is that the transfer of powers to a new appellate authority under the relevant rules and statutes determines the jurisdiction to entertain applications to set aside exparte orders.

Balakrishnan, J.

One Nagoor Pichai Ahamed Kannu filed R.C.P. No. 170/81 against the respondent - tenant for eviction from a building on the ground of arrears of rent. Pending proceedings Ahamed Kannu died and the petitioners were impleaded as legal heirs. The Rent Control Court dismissed the application and an appeal was preferred against the order of the Tribunal before the Appellate Authority, namely, Sub Judge, Thiruvananthapuram. as R. C. A. 12/86. The first respondent was declared exparte in that proceedings and the appeal was allowed ordering eviction on the ground of arrears of rent. Petitioners later filed an application for execution of the order of eviction passed by the appellate authority. During the pendency of the application for eviction, Govt. by a notification issued under S.18 of the Act divested the powers of the appellate authority conferred on the Sub-Judge and by a separate notification conferred the powers of appellate authorities on District Judges in supersession of all previous notification on the subject. The respondent then filed I. A. No. 2729/93 before the 1st Additional District Judge to set aside the exparte order. The petitioners have contended that the application should have been filed before the Subordinate Judge's Court who passed the order of eviction. This plea was rejected and the First Additional District Judge by the impugned order held that the powers of the appellate authority now vest with District Court, and therefore, an application to set aside exparte order could be entertained only by an appellate authority invested with such powers under the Act. This C. R. P. is directed against that order.

2. The short question that arises for consideration is whether an application to set aside an exparte order is to be entertained by the original appellate authority who passed the eviction order in spite of the charge of jurisdiction effected by the statutory notification. The counsel for the petitioners contended that R.16(3) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 is the relevant provision, which enables a party to file an application to set aside eh exparte order passed by the appellate authority. It is pointed out that such an application is to be filed before the appellate authority who has passed the order. Therefore an application filed before the appellate authority who got powers subsequent to the passing of the original order of eviction is not maintainable. R.16(3) of the Kerala Buildings (Lease and Rent Control) Rules reads as follows:

"In any case in which the order is passed exparte against a tenant or a landlord the tenant or the landlord, as the case may be, may within 15 days from the date of receipt of the order apply to the Appellate Authority by whom the order was passed for an order to set aside; and if the tenant or the landlord, as the case may be, satisfied the Appellate Authority that: the summons was not duly served or dial he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the appellate authority shall make such order as it deems fits and shall appoint a day for proceeding with the appeal." (emphasis supplied).

The argument of the petitioners' counsel centres around the words' by whom the order was passed ' and it is urged that even after the divestiture of powers of the Subordinate Judge, an application should be filed before that authority even though the powers of the appellate authority is now conferred on the District Judge. We are not inclined to accept this contention. After the notification of the Government issued under S.18 of the Act, the Subordinate Judges are no longer the appellate authorities as envisaged under the Act. By notification of the Government issued on 31.8.89 the powers of the appellate authority are conferred on' District Judges. As the original order of eviction was passed by an appellate authority, such an order could be reversed or varied only by an appella