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Kesavalu Naidu Vs. Janakirama Naidu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2994 of 1974
Judge
Reported inAIR1979Mad8a
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 13 - Order 43, Rule 1
AppellantKesavalu Naidu
RespondentJanakirama Naidu
Cases ReferredRamayya v. Lakshmayya
Excerpt:
.....not satisfied and it would tant-amount to rejection of the application within the meaning of o. if the last sentence of the decretal order be left out, clearly there would be something lacking, that is to say, a ruling as to the effect of any default on the part of the petitioners. this submission of the learned counsel for the respondent seems to be well founded. the ratio of decisions relied on by the learned counsel for the petitioner is not applicable to the facts of the present case, as they are clearly distinguishable from the facts of the case which were the subject matters of consideration in the above decisions......directed against the above orders of the district judge, north arcot.2. sri r. ramalinga pillai, learned counsel for the petitioner, submits that the order passed by the district munsif, ranipet on 27-3-1972 is a self-contained order and it would work itself out if the conditions imposed were not satisfied and it would tant-amount to rejection of the application within the meaning of o. 43, rule 1(d) c. p. c. the learned counsel wants to derive support for his submission from the ratio of two judicial precedents of this court. the first one is that reported in ramayya v. lakshmayya : air1944mad383 . in that case, a division bench of this court consisting of mockett and bell jj. had occasion to consider an order dated 5-7-1943, which read as follows-'it is ordered that the petition be.....
Judgment:
ORDER

1. The petitioner-defendant in I. A. No. 1117 of 1971 in O. S. No. 24 of 1971 on the file of the District Munsiff, Ranipet, is the petitioner in this revision. The respondent herein is the plaintiff in that suit. I. A. No. 1117 of 1971 was filed by the petitioner under O. 9. Rule 13 C. P. Code, for setting aside an ex parte decree passed against him. The court below passed an order on 27-3-1972 and the decretal order reads as follows-'The petition will be allowed on payment of Rs. 75 as costs on condition on or before 5-4-1972, failing which the petition do stand dismissed with costs. Call on 6-4-1972'. Admittedly, the conditions imposed were not compiled with and the matter was called on 6-4-1972, and the court below passed the following order :-

'Costs not paid. Petition dismissed.'

The petitioner herein wanted to file an appeal under O. 43, R. 1(d) C. P. Code, to the District Judge, North Arcot, as against the order passed on 27-3-1972. The appeal was returned with the following endorsement:-'The appeal is incompetent. The lower court's judgment is one allowing the application, but on terms. If the petitioner has any grievance against it, he can only seek to have it revised.' The present revision is directed against the above orders of the District Judge, North Arcot.

2. Sri R. Ramalinga Pillai, learned counsel for the petitioner, submits that the order passed by the District Munsif, Ranipet on 27-3-1972 is a self-contained order and it would work itself out if the conditions imposed were not satisfied and it would tant-amount to rejection of the application within the meaning of O. 43, Rule 1(d) C. P. C. The learned counsel wants to derive support for his submission from the ratio of two judicial precedents of this court. The first one is that reported in Ramayya v. Lakshmayya : AIR1944Mad383 . In that case, a Division Bench of this court consisting of Mockett and Bell JJ. had occasion to consider an order dated 5-7-1943, which read as follows-

'It is ordered that the petition be and the same is hereby allowed. It is further ordered that the petitioners do deposit into court a sum of Rs. 100 towards their costs in this petition and also in I. A. Nos. 569,570 and 625 to 627 of 1943, irrespective of the result of the suits and do also deposit the costs decreed on or before 26th July 1943. It is further ordered that in default of payment the petitions do stand dismissed with costs.' In that case, the suits were taken up on 26-7-1943, and the following order was passed on that date-

'Defendants are called and they are absent. The plaintiffs are ready. The defendants have not deposited the amount ordered to be paid into court by this date in I. A. Nos. 468 and 625 of 1943. As the direction given in the order on the said petitions is not obeyed, the order operates and the decrees passed already stand.'

The Division Bench held that the order passed on 5-7-1943 was an all-comprehensive one and there was nothing further to be done by the court when the order dated 5-7-1943 was passed. It would be relevant to extract the observations of Bell J. in the judgment which reads as follows-

'I agree and would only add a word on the preliminary objection raised by the respondents. Where any further direction of the court is required with regard to the matters in issue between the parties it cannot be said that finality in any shape or form has been reached. What more on 5-7-1943, was required from the Subordinate Judge's court? If the last sentence of the decretal order be left out, clearly there would be something lacking, that is to say, a ruling as to the effect of any default on the part of the petitioners. But this the order provided for by saying 'It is further ordered that in default of payment the petitions do stand dismissed with costs.' Nothing further was left to be said as to the final result of the petition.'

The next decision relied on by the learned counsel for the petitioner is the case of Kommineni Kotiah v. Muvva Narasimha : (1948)2MLJ596 . It is the judgment of Panchapakesa Ayyar J. From the reading of the judgment, it is found that the learned Judge was concerned with an order passed by the Court below in that case on 3-7-1946, the material portion of which ran as follows-

'This court both order and decree that the ex parte decree passed on 18-2-1946 against the petitioner be set aside on condition of petitioner depositing the costs of suit Rs. 128-4-0 on or before 2-8-1946, and also paying Rs. 10 as day costs to the respondent's (plaintiff's) vakil on or before that date and (2) that in default of the one or the other of the two conditions, the petition stands dismissed automatically'.

The learned Judge considered the reasoning of the Division Bench of this court in Ramayya v. Lakshmayya : AIR1944Mad383 and found that there was no further order of the District Munsif after the final order passed on 3-7-1946. The learned Judge construed the order dated 3-7-1946 as an all-comprehensive one and as the final order passed for purposes of appeal.

3. Sri K. Radhakrishnan learned counsel for the respondent, submits that the dictum laid down in the above decisions cannot be invoked in the present case for the reason that the order passed by the District Munsif, Ranipet, on 27-3-1972, cannot be said to be an 'all-comprehensive' one, because there was a necessity for the said court to pass further order on 6-4-1972, which in fact was passed by that court to the effect set out already. According to the learned counsel, it was only after an order was passed on 6-4-1972, that a finality was given to the orders of the District Munsiff, Ranipet, and only by virtue of the order dated 6-4-1972, it may be said that the application in I. A. No. 1117 of 1971, in O. S. No. 24 of 1971 was rejected so as to make the later order alone appealable under Order 43, Rule 1(d) C. P. C. This submission of the learned counsel for the respondent seems to be well founded. It cannot be said that the order passes by the District Munsif, Ranipet, on 27-3-1972, is an 'all-comprehensive' one. The said court has reserved and postponed the passing of final orders to a future date, namely, on 6-4-1972, and only when orders were passed on 6-4-1972, it can be said that finality was given with reference to the order of the said court. As pointed out earlier, in the present case, there was an order passed on 6-4-1972 dismissing the petition for the non-compliance of the conditions imposed earlier by order dated 27-3-1972. When the District Munsif of Ranipet passed orders on 27-3-1972, there obviously was an intention expressed to postpone the passing of final orders and reverse final consideration of the question to another date. The ratio of decisions relied on by the learned counsel for the petitioner is not applicable to the facts of the present case, as they are clearly distinguishable from the facts of the case which were the subject matters of consideration in the above decisions. I find that the District Judge, North Arcot passed the correct order when he said that the appeal sought to be preferred is incompetent. There are no grounds in law for interfering with the said order. Hence, this revision petition is dismissed and there will be no order as to costs.

4. Petition dismissed.


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