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Kaki Venkatappa Vs. Toppal Timmappa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revision Petition No. 728 of 1950
Judge
Reported inAIR1952Mad19; (1951)2MLJ494
ActsCode of Civil Procedure (CPC) , 1908 - Order 37, Rule 3
AppellantKaki Venkatappa
RespondentToppal Timmappa
Appellant AdvocateK. Srinivasa Rao, Adv.
Respondent AdvocateT.V. Raghunath Rao, Adv.
DispositionRevision dismissed
Cases ReferredPeriaya Miyan Marakayar v. Subramania
Excerpt:
.....petition has only been filed by him in this court on 31-1-1950 when his petition for unconditional leave had been washed out for all practical purposes and when the real substantial remedy of the petitioner, if he really had a good case, was to apply under order 37, rule 4. civil procedure code (no such provision exists in the original side rules) which provides for setting aside decrees already passed. of course, merely as a matter of law, i cannot say that the petitioner has no right to file a petition like this. it is well-known that even a final decree has been passed in pursuance of a preliminary decree an appeal against the preliminary decree, if within time, can be filed, and if the appellant succeeds therein, the final decree will automatically fall, like a branch after the trunk..........the defendant had a 'prima facie' case to contest the suit, and that, under the rulings in periya miyan v. subramania iyer', 46 l jour 255 'sundaram chettiar v. valliammal', 68 mad 116 and 'kesavan v. south indian bank limited', 1949 2 mad l jour 70 the court has no discretion to refuse unconditional leave to defend in a case where it comes to the conclusion that there is a triable issue in the case, as the lower court did. mr. ranganatha rao, for the plaintiff respondent, urged that two of the bench rulings relied on by the learned counsel for the petitioner, namely, 'sundaram chettiar v. vaillammal', 58 mad 116 and 'kesavan v. south india bank limited', 1949 2 mad l jour 70 relate to leave on the original side, where the rules regarding this matter are quite different and unconnected.....
Judgment:
ORDER

Panchapakesa Ayyar, J.

1. This is a petition to revise the order of the District Munsiff, Bellary, dated 3-11-1949, in LA. No. 781 of 1949 in O.S. No. 347 of 1949, granting the petitioner leave to defend in a suit on a promissory note, only on condition of his furnishing security of immovable property for Rs. 2,000 even though the learned District Munsiff had, in the course of the very same order, observed that he was convinced that the defendant had a 'prima facie' case to contest the suit. The defendant (petitioner) had admittedly alienated some of his properties shortly before the suit. I have perused the entire records and heard the learned counsel on both sides.

2. Mr. K. Srinivasa Rao, for the petitioner, urged that the lower Court should have given unconditional leave to defend, in view of its own findings that the defendant had a 'prima facie' case to contest the suit, and that, under the rulings in Periya Miyan v. Subramania Iyer', 46 L Jour 255 'Sundaram Chettiar v. Valliammal', 68 Mad 116 and 'Kesavan v. South Indian Bank Limited', 1949 2 Mad L Jour 70 the Court has no discretion to refuse unconditional leave to defend in a case where it comes to the conclusion that there is a triable issue in the case, as the lower Court did. Mr. Ranganatha Rao, for the plaintiff respondent, urged that two of the Bench rulings relied on by the learned counsel for the petitioner, namely, 'Sundaram Chettiar v. Vaillammal', 58 Mad 116 and 'Kesavan v. South India Bank Limited', 1949 2 Mad L Jour 70 relate to leave on the original side, where the rules regarding this matter are quite different and unconnected with the rules in the Civil Procedure Code. A Bench of this Court, to which I was a party, has also held recently that the rules of the Original Side are independent rules having nothing to do with the rules in the Civil Procedure Code. But the ruling in 'Periya Miyan Marakayar v. Subramania Iyer', 46 M.L.J. 255 relates to Order 37, Civil Procedure Code and not to the rules of the original side. To this Mr. Ranganatha Rao's answer is that there is a ruling by Varadachariar J., in 'Thyagaraja Mudall v. Vedathunni, 70 M.L.J. 241 where the learned Judge discusses the ruling in 'Periaya Miyan Marakayar v. Subramania Iyer', 46 M.L.J. 255 carefully, and comes to the conclusion that even under that ruling the discretion of a Court to order the furnishing of security before giving leave to defend would be regulated by various circumstances in the particular case, and that the order of a Court passed in the exercise of that discretion should only be interfered with by the High Court if the discretion is proved to have been arbitrarily or perversely exercised, and that even if a Court had considered that there was 'a plausible defence' it might still grant leave, in the circumstances, only on condition of furnishing security, and that, by itself, would not amount to any arbitrary or perverse exercise of the discretion. Of course, the decision of Varadachariar J., is only by a single Judge, as against the decision of the Bench in 'Periya Miyan Marayakar v. Subramania Iyer', 46 M.L.J. 255 relied on by, Mr. Srinivasa Rao as contended by him. Still, the fact remains that the Bench decision was fully considered by that very eminent Judge and that he came to the above conclusion, which is one to which in my opinion, any Judge will come to on grounds of justice and equity. In his case, the petitioner had also alienated some of his properties, unlike in the case in 'Periya Miyan Marakayar v. Subramania Iyer' 46 M.L. J. 255. I am satisfied that, where the learned District Munsiff observed, that he was convinced that the defendant (petitioner) had a 'prima facie' case to contest the suit, he meant only that he had a 'plausible case', the phrase used by Varadachariar J., in Thyagaraja Mudaliar v. Vedathuni.' 70 M.L.J. 241 and not that he had a good case, much less a foolproof case. A reading of the petitioner's defence will also show that that is all he had Just a plausible case and nothing more. Besides, the case has now gone many stages further from the stage when leave to defend unconditionally was refused by the lower Court. The petitioner failed to furnish the security ordered, and an ex parte decree was passed against him on 11-11-1949. This petition has only been filed by him in this Court on 31-1-1950 when his petition for unconditional leave had been washed out for all practical purposes and when the real substantial remedy of the petitioner, if he really had a good case, was to apply under Order 37, Rule 4. Civil Procedure Code (no such provision exists in the Original Side Rules) which provides for setting aside decrees already passed. Of course, merely as a matter of law, I cannot say that the petitioner has no right to file a petition like this. It is well-known that even a final decree has been passed in pursuance of a preliminary decree an appeal against the preliminary decree, if within time, can be filed, and if the appellant succeeds therein, the final decree will automatically fall, like a branch after the trunk has been cut. But all this is mere abstract speculation for our purposes. In the present case, not only had the Court a discretion to order security and exercised it judiciously, but the petitioner himself admittedly gave in undertaking in the lower Court not to alienate us remaining properties. Mr. Srinivasa Rao's contention that that undertaking would do and that an order for security was uncalled for, is not convincing. 'Bona fide' purchasers for value without notice-- and they will crop up in no time in present day conditions -- will not be bound by any such undertaking, of which they are ignorant. So, a recurity will be of far greater value to a plaintiff than an undertaking of the above nature.

3. In the end, therefore, this petition deservesto be, and is hereby dismissed, but without costsas it was obviously filed relying on the Bench rulingin 'Periaya Miyan Marakayar v. Subramania lyer',46 M.L.J. 255 which cannot be said to havebeen overruled, though it has been interpreted inwhat I consider to be the only reasonable way bya single Judge, Varadachariar, J., in the later ruling in Thyagarja Mudaliar v. 'Vedathunnl' 70 M.L. J. 241.


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