M. L. CHATURVEDI, J. :- This is a petition under Article 226 of the Constitution.

2. The case of the petitioner as set out in the petition is that one Abdul Hakim was the tenant, along with his brother, of a shop in the Vegetable Market, Bisheshar Ganj, Banaras. Abdul Hakims brother died about 10 years ago, and in 1948 the petitioner became a partner of Abdul Hakim in the fruit business carried on in the shop. The petitioner says that he contributed a sum of Rs. 5,000/- and that a deed of partnership was executed on the 25th October, 1943. Subsequently Abdul Hakim went to Pakistan, and a notice was issued to him in April 1950 under Section 7 of the Administration of Evacuee Property Act of that year to show cause why he should not be declared an evacuee and his property as evacuee property. No objection was filed by Abdul Hakim, and the movable property in the shop was in due course declared to be evacuee property. Subsequently however, Abdul Hakim returned to India, and, on an objection being then filed by him the order declaring him an evacuee and his property to be evacuee property was set aside.

Abdul Hakims stay in India appears to have been temporary and he again went to Pakistan. A second notice was thereupon issued under S. 7 of the Act to which an objection was filed by the petitioner on the ground that Abdul Hakim had surrendered his rights as lessee in the shop in question and that the Municipal Board had allotted the shop to the petitioner on a monthly rent of Rs. 8/-. A second objection was that the tenancy rights of Abdul Hakim in the shop were not mentioned in the second notice as property to be declared as evacuee property.

3. The petitioners objections were dismissed by the Assistant Custodian, Banaras, on the 25th September, 1951, and an appeal from the order of the Assistant Custodian was dismissed by the Additional Custodian, Lucknow, on the 5th April, 1952. The petitioner then filed an application in revision to the Custodian General under Section 27 of the Act which was also dismissed on the 26th August, 1953. It is in these circumstances that the petitioner has filed the present petition in which he prays for a writ of certiorari to quash each of the orders made by the Assistant Custodian, the Additional Custodian and the Custodian General. He has impleaded one Daya Ram, who appears to be the person who is now a tenant of the shop in question, as respondent No. 4.

4. A preliminary objection to the maintainability of this petition has been taken by the learned Counsel who appears for the first three respondents. It is that the orders made respectively by the Assistant Custodian and the Additional Custodian have merged in the order of the Custodian General dated the 26th of August, 1953, and that as the Custodian General neither resides nor is his office located within the territory in relation to which this Court exercises jurisdiction, it can issue no writ of certiorari to quash the order made by him. In our opinion this objection must be upheld.

5. It is, in our opinion, now well settled so far as this Court is concerned that the decree of an appellate Court supersedes the decree of the first Court even in cases where the appellate Court merely affirms the original decree :- Mohammad Sulaiman Khan v. Mohammad Yar Khan, 11 All 267 (A); - Mohammad Sulaiman Khan v. Fatima, 11 All 314 (B). The same principle has been extended by a learned single Judge of this Court in the case of - Gauri Shankar v. Jagat Narain, AIR 1934 All 134 (C), in which it was held that the ex parte decree of the lower Court merged in the decree passed by this Court in revision.

6. Our attention has been drawn by the learned counsel for the petitioner to the case of - Chandu Abdul Majid v. Jawahar Lal, AIR 1914 PC 66 (D). In that case the Privy Council held that where an appeal before the Board had been dismissed for want of prosecution it could not be said that the Privy Council had dealt with the matter judicially in any manner a