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Palaniappa Chetty Vs. Subrahmanyia Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1921Mad568; 66Ind.Cas.59; (1921)41MLJ90
AppellantPalaniappa Chetty
RespondentSubrahmanyia Chetty and ors.
Cases ReferredChenna Reddi v. Peddabbi Reddi I.L.R.
Excerpt:
- - 13 and we are clearly of opinion, on the authority of these decisions and also of the full bench decision of this court in chenna reddi v. order 9, rule 13, expressly provides that the party may apply to the court by which the decree was passed and the petitioners were clearly wrong in presenting their petition to this court pending the appeal and ought to have gone to the lower court......i.l.r. (1907) mad. 535 was subsequently overruled by a full bench of this court to which i was a party in chenna reddi v. peddabbi reddi i.l.r. (1908) mad. 416 (f.b.). this question has been elaborately considered in a number of recent cases mathura prasad v. ram charn lal i.l.r.(1915) all. 208 gajaraj mate tiwarin v. swami nath roy chowdhury i.l.r. 39 all. 13 and we are clearly of opinion, on the authority of these decisions and also of the full bench decision of this court in chenna reddi v. peddabbi reddi i.l.r. (1908) mad. 416 that this application should have been made to the lower court and not to this court. order 9, rule 13, expressly provides that the party may apply to the court by which the decree was passed and the petitioners were clearly wrong in presenting their petition.....
Judgment:
ORDER

1. This is a petition by the 2nd respondent in this appeal under Order 9, Rule 13, C.P.C, to set aside an exparte decree obtained against him in the lower court in the suit now under appeal, and in support of this application reliance was placed on a decision in Sankara Bhatta v. Subraya Bhatta I.L.R. (1907) Mad. 535. That was a case in which the application was made after the appeal had been disposed of and the case is, therefore, distinguishable. That case, however, proceeds upon the ground that the filing of the appeal divested the lower court of the power to entertain that application. There was some warrant for that view in earlier decisions at the time when that judgment was given, but the matter has been abundantly considered since and we think it must now be taken as settled, at any rate in all the other High Courts, that the me/e filing of an appeal does not take away the jurisdiction of the lower court to entertain such an application as this. We may also observe that the decision in Ramanathan Chatty v. Narayanan Chetty I.L.R. (1904) Mad. 602 as to the proper court to which a review application should be made which was relied on in Sankara Bhatta v. Subraya Bhatta I.L.R. (1907) Mad. 535 was subsequently overruled by a Full Bench of this Court to which I was a party in Chenna Reddi v. Peddabbi Reddi I.L.R. (1908) Mad. 416 (F.B.). This question has been elaborately considered in a number of recent cases Mathura Prasad v. Ram Charn Lal I.L.R.(1915) All. 208 Gajaraj Mate Tiwarin v. Swami Nath Roy Chowdhury I.L.R. 39 All. 13 and we are clearly of opinion, on the authority of these decisions and also of the Full Bench decision of this Court in Chenna Reddi v. Peddabbi Reddi I.L.R. (1908) Mad. 416 that this application should have been made to the lower Court and not to this Court. Order 9, Rule 13, expressly provides that the party may apply to the Court by which the decree was passed and the petitioners were clearly wrong in presenting their petition to this Court pending the appeal and ought to have gone to the Lower Court. In the result the petition will be returned to the petitioner to enable him to take such further action on it as he may be advised. The petitioner will pay counter petitioner's costs.


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