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R.M. Muthukrishnan Chettiar and anr. Vs. R.M. Muthalagiri Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Arbitration
CourtChennai
Decided On
Case NumberCivil Revn. Petn. No. 1467 of 1948
Judge
Reported inAIR1950Mad295
ActsCode of Civil Procedure (CPC) , 1908 - Orders 9, Rule 13 - Order 43, Rule 1 ; Arbitration Act, 1940 - Sections 17
AppellantR.M. Muthukrishnan Chettiar and anr.
RespondentR.M. Muthalagiri Chettiar and anr.
Appellant AdvocateA. Swaminatha Iyer, Adv.
Respondent AdvocateV. Ramaswami Iyer, Adv.
DispositionPetition dismissed
Cases ReferredSelvarayan Samson v. Amalorpavanadan
Excerpt:
- .....of devakottai dated 3rd february 1947, dismissing the application for setting aside an ex parte decree passed on 25th february 1946. the application i. a. no. 546 of 1946, was filed under provisions of order 9, rule 13 and section 151, civil p. c., for setting aside the ex parte decree passed against defendants 1 and 2 in o. s. no. 7 of 1946, the grounds alleged being that they were not served with notice. the learned subordinate judge found that notice had been served and dismissed the application. the appellate court held on an examination of the evidence adduced before the trial court that the evidence of r. ws. 1 and 2 could not be accepted and therefore held that the evidence regarding service was not quite satisfactory and accepted the evidence of defendants l and 2 as against.....
Judgment:
ORDER

Krishnaswami Nayudu, J.

1. Plaintiff and defendant 3 are the petitioners. Plaintiff instituted O. S. No. 7 of 1946, for passing a decree in terms of an award, the dispute being between defendants 1 and 2 and defendant 3. This revision petition is against the order of the District Judge of Ramnad allowing an appeal filed by defendants 1 and 2 against the order of the Subordinate Judge of Devakottai dated 3rd February 1947, dismissing the application for setting aside an ex parte decree passed on 25th February 1946. The application I. A. No. 546 of 1946, was filed under provisions of Order 9, Rule 13 and Section 151, Civil P. C., for setting aside the ex parte decree passed against defendants 1 and 2 in O. S. No. 7 of 1946, the grounds alleged being that they were not served with notice. The learned Subordinate Judge found that notice had been served and dismissed the application. The appellate Court held on an examination of the evidence adduced before the trial Court that the evidence of R. Ws. 1 and 2 could not be accepted and therefore held that the evidence regarding service was not quite satisfactory and accepted the evidence of defendants l and 2 as against that of the plain-tiff and the R. W. 2 and allowed the appeal.

2. It is now contended before me that the appeal C. M. A. No. 12 of 1947 before the District Judge of Ramnad was not competent as no appeal lay against an order under Order 9, Rule 13, rejecting an application for setting aside the ex parte decree passed in terms of an award. This point appears to have been raised before the learned District Judge, but the learned District Judge held that under the provisions of Section 17, Arbitration Act, a period of thirty days had to be given before the decree could be passed in terms of an award and that period not having been given, the decree itself was void and on that ground also he set aside the order of the learned Subordinate Judge refusing to set aside the ex parte decree. As regards the contention of the learned counsel for the petitioner that an appeal does not lie against the order, it is un necessary for me to discuss the question as it is governed by a Bench decision of this Court in Selvarayan Samson v. Amalorpavanadan, : (1928)55MLJ262 which followed a decision of the Allahabad High Court in Nihal Singh v. Khushlal Singh, : AIR1916All51 The learned counsel relied on the words 'in a case open to appeal' under Order 43, Rule 1 (d) and argued that in the case of a decree passed in terms of an award except if the decree is in excess or not otherwise in accordance with the award no appeal lay under the provisions of Section 17, Arbitration Act and hence no appeal lay against an order rejecting an application under Order 43, Rule 1 (d), Civil P. C., This matter has been specifically raised before the learned Judges who decided Selvarayan Samson v. Amalorpavanadan, : (1928)55MLJ262 and they hold--with which I respectfully agree - that 'A case open to appeal' means not only a case in which an appeal is always provided, but also a case where appeal is provided on certain grounds. Once it is conceded that an appeal would lie on certain grounds, under Section 17, Arbitration Act, an appeal would certainly lie under the provisions of Order 43, Rule 1 (d). I therefore hold that the order of the learned District Judge is correct and does not require any interference. This revision petition is dismissed, The petitioners will pay the costs of the respondents.


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