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Chimakurihi Seethaiah Vs. Burra Venkata Reddi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 503 of 1962
Judge
Reported inAIR1968AP289
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 9 - Order 17, Rule 2 - Order 20, Rules 15 and 16
AppellantChimakurihi Seethaiah
RespondentBurra Venkata Reddi
Appellant AdvocateK. Sivaprasadarao, Adv.
Respondent AdvocateA. Venkataramana, Adv.
DispositionPetition allowed
Excerpt:
civil - dismissal of suit - order 17 rule 2, order 9 rule 9 and order 20 rules 15 and 16 of code of civil procedure, 1908 - suit for dissolution of partnership - trial judge passed preliminary decree for rendition of accounts - appeal against such order dismissed - afterward suit dismissed for default - revision against such dismissal - preliminary decree cannot be vacated on ground of default in later stage of suit - held, order of dismissal of suit untenable. - - if, for instance, the subordinate judge had made an order adjourning the proceedings sine die, with liberty to the plaintiff to restore the suit to the list on payment of all costs and court fees (if any) thrown away, it would have been a perfectly proper order......court of the learned subordinate judge. bapatla against the preliminary decree. the subordinate judge dismissed that appeal bv his judgment dated 21-7-1961. a few months after the learned subordinate judge dismissed a. s. no. 83 of 1960, the learned district munsif passed an order dated 26-10-1961 as follows.'the advocate for the plaintiff is absent and his clerk could not explain the default. from what is stated it appears they are not anxious for it. dismissed for default no costs 'the plaintiff filed the revision petition against the said order.3. today i dismissed s. a. no. 788 of 1962, which is a second appeal preferred by the appellant-plaintiff against the decision of the learned subordinate judge in a. s, no. 83 of 1960.4. in lachmi narain v. balmakund, air 1924 pc 198, in a.....
Judgment:
ORDER

1. This is a petition to revise the order of the learned District Munsif, Bapatla dated 28-1-1961 in O S No 334 of 1957.

2. The sole plaintiff. Chimakurthi Seataiah, filed O. S. No. 334 of 1957 in the Court of the District Munsif, Bapatla against Burra Venkata Reddi as sole defendant for dissolution of partnership if found necessary for settlement of accounts regarding a certain transaction and for payment of such amount as may be found due. The learned District Munsif, after full trial, passed a preliminary decree by judgment dated 8-9-1960 for accounts being rendered by the plaintiff. The plaintiff felt aggrieved and filed A. S. No. 83 of 1960 in the Court of the learned Subordinate Judge. Bapatla against the preliminary decree. The subordinate Judge dismissed that appeal bv his Judgment dated 21-7-1961. A few months after the learned Subordinate Judge dismissed A. S. No. 83 of 1960, the learned District Munsif passed an order dated 26-10-1961 as follows.

'The advocate for the plaintiff is absent and his clerk could not explain the default. From what is stated it appears they are not anxious for it. Dismissed for default No costs '

The plaintiff filed the revision petition against the said order.

3. Today I dismissed S. A. No. 788 of 1962, which is a second appeal preferred by the appellant-plaintiff against the decision of the learned Subordinate Judge in A. S, No. 83 of 1960.

4. In Lachmi Narain v. Balmakund, AIR 1924 PC 198, in a case where a suit was dismissed after a preliminary decree for partition had been passed and became final, their Lordships of the Privy Council observed as follows, at p. 200.

'After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside. After a decree any party Can (as already stated) apply to have it enforced. ..... Their Lordships are fully sensible of the necessity of leaving the Judges in India with ample power of discipline, and means to check neglect and delay. If, for instance, the Subordinate Judge had made an order adjourning the proceedings sine die, with liberty to the plaintiff to restore the suit to the list on payment of all costs and Court fees (if any) thrown away, it would have been a perfectly proper order.'

The principle of this decision of the Privy Council has been followed in various decisions of the Madras High Court and other High Courts: See Perumal Pillai v. Perumal Chetty, AIR 1928 Mad 914, Lachmi Narayan v. Ramsaran, AIR 1925 Pat 433 and Sundararajamma v. Ramulu, AIR 1932 Mad 519. It is therefore clear from the above decisions that after a preliminary decree in a partition suit was passed, it was not competent to the Court to dismiss the suit subsequently, that the preliminary decree can only be reversed on appeal and whatever default there may be in the subsequent stages of the suit, that preliminary decree itself cannot be vacated. The fact that the preliminary decree in the present suit is for accounts does not make any substantial difference.

5. The order of dismissal of the suit by the learned District Munsif, is, therefore, untenable.

6. I, therefore, allow this revision petition and set aside the order of dismissal and direct the District Munsif to adjourn the proceedings sine die with liberty to the plaintiff to restore the suit to the list in the manner indicated by their Lordships of the Privy Council in AIR 1924 PC 198. There shall be no order as to costs.


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