Defendant's entitlement to raise the same point in appeal against an ex-parte decree and the requirement for evidence to support findings.

Devadoss, J.

1. The first point urged in this second appeal is that the defendant against whom an ex-parte decree had been passed and who had applied to set aside the decree and failed in getting relief, is entitled to raise the same point in the appeal against the decree. This point is covered by authority. Vide, B. C. Asethu v. V. Kesavayya [1920] 39 M. L. J. 697 Mr. Venkatarama Iyer for the appellant disputes the correctness of this position and wants this point to be argued before a Bench of two Judges. This decision was followed by me and Oldfield, J., in B. Levvai Sahib v. Ammcenammal A. I. R. 1924 Mad. 107 and the only decision which he says supports him is that reported in Nand Ram v. Bhupal Singh [1912] 34 All. 592 In that case the point did not directly arise. There the application was under Section 115. In the course of the judgment the learned Judges remark that it is open to the defendant to raise the same question in appeal against the decree. With great respect, I am unable to agree with them and seeing that the point is covered by the decisions of this Court, I do not think I shall be justified in placing his case before a Bench of two Judges.

2. The next point urged is, that there is no evidence to support the finding on the point as to the priority of the sale-deed. There is the evidence of the plaintiff, P. W. 1, to the effect that his sale deed was executed before the sale-deed in favour of defendant 5. When there is evidence to support the findings and when defendant 5 did not appear to contest the suit in the lower Court, it is not open to him to object to the evidence on which the lower Courts have relied.

3. In the result the second appeal fails and is dismissed with costs.