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In Re: Devarakondah Venkata Subbaramiah Alias Subbaramiah and ors. - Court Judgment

LegalCrystal Citation
Subjectcivil
CourtChennai
Decided On
Reported inAIR1944Mad576
AppellantIn Re: Devarakondah Venkata Subbaramiah Alias Subbaramiah and ors.
Cases ReferredSubramania Iyer v. Varadarajulu
Excerpt:
- .....only point that arises for consideration in this petition is whether after an appeal against an ex parte decree has been dismissed, it would be open to the trial court to pass an order on a petition to set aside the ex parte decree filed before the appeal was heard. the learned subordinate judge has held that he had jurisdiction to set aside the decree and following the ruling of this court in subramania iyer v. varadarajulu : air1927mad722 held that he had jurisdiction to pass an order on the petition and set aside the ex parte decree. it is urged before me that the observations of the privy council in brij narain v. tejbal bikram 32 all. 295 were not brought to the notice of the judge who decided that case and that if those observations are borne in mind it could not be said that the.....
Judgment:
ORDER

Kuppuswami Ayyar, J.

1. The only point that arises for consideration in this petition is whether after an appeal against an ex parte decree has been dismissed, it would be open to the trial Court to pass an order on a petition to set aside the ex parte decree filed before the appeal was heard. The learned Subordinate Judge has held that he had jurisdiction to set aside the decree and following the ruling of this Court in Subramania Iyer v. Varadarajulu : AIR1927Mad722 held that he had jurisdiction to pass an order on the petition and set aside the ex parte decree. It is urged before me that the observations of the Privy Council in Brij Narain v. Tejbal Bikram 32 ALL. 295 were not brought to the notice of the Judge who decided that case and that if those observations are borne in mind it could not be said that the ruling of this Court is correct. In that case the question was whether the original Court had jurisdiction to amend the decree after the matter was taken in appeal and the appellate Court passed a decree. That is altogether a different matter and the question before me was not the subject-matter for decision in that case. Nor has the decision in Venugopal Mudali v. Venkatasubbiah Chetti A.I.R. 1916 Mad. 883 any application to the facts of this case. As a matter of fact this question was considered by a Bench of this Court in Palaniappa Chetti v. Subramania Chetty A.I.R. 1922 Mad. 33 referred to by Curgenven J. in his judgment in Subramania Iyer v. Varadarajulu : AIR1927Mad722 and it was pointed out by that Bench that where a defendant has been a party to the appeal which was disposed of, his application to set aside the ex parte decree would not lie in the appellate Court but in the first Court. In the light of these two rulings of this Court, I do not think I will be justified in admitting this revision petition. The petition is accordingly dismissed.


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