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Seethai Mills Ltd., by Present Managing Director M.J. Dorai Raj Vs. N.V. Perumalswamy, Registered Partnership Firm by Its Managing Partner, N.V. Perumalswamy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1977)2MLJ270
AppellantSeethai Mills Ltd., by Present Managing Director M.J. Dorai Raj
RespondentN.V. Perumalswamy, Registered Partnership Firm by Its Managing Partner, N.V. Perumalswamy
Excerpt:
- .....application for re-transfer of c.s. no. 113 of 1975 on the file of this court to the file of the city civil court, madras, for trial and disposal.2. o.s. no. 3032 of 1966 was filed by the respondent herein for recovery of rs. 17,093-06 being the value of cotton supplied to the appellant. as the appellant was absent, an ex parte decree was passed on 30th march, 1967 by the learned city civil judge. for nonpayment of the decree amount, proceedings under the company law for winding up also were started in this court. while so, application no. 757 of 1975 was filed by the respondent herein on the original side of this court for transfer of the proceedings, namely, the application for setting aside the ex parte decree and another application for excusing the delay in seeking to set aside.....
Judgment:
ORDER

P.S. Kailasam, C.J.

1. This appeal is filed against the judgment of Mohan, J. in Application No. 1239 of 1975 in Company Petition No. 96 of 1974 dismissing the said application for re-transfer of C.S. No. 113 of 1975 on the file of this Court to the file of the City Civil Court, Madras, for trial and disposal.

2. O.S. No. 3032 of 1966 was filed by the respondent herein for recovery of Rs. 17,093-06 being the value of cotton supplied to the appellant. As the appellant was absent, an ex parte decree was passed on 30th March, 1967 by the learned City Civil Judge. For nonpayment of the decree amount, proceedings under the company law for winding up also were started in this Court. While so, Application No. 757 of 1975 was filed by the respondent herein on the original side of this Court for transfer of the proceedings, namely, the application for setting aside the ex parte decree and another application for excusing the delay in seeking to set aside the ex parte decree to the High Court along with O.S. No. 3032 of 1966, in which an ex parte decree had already been passed. Mohan, J., by an order, dated 11th April, 1975 directed the transfer of the records in O.S. No. 3032 of 1966 along with the two applications. The application out of which this appeal arises, Application No. 1239 of 1975, was filed by the judgment-debtor for re-transfer of the applications to the City Civil Court, Madras. The learned Judge found that the application for setting aside the ex parte decree was belated and that it had to be dismissed. He also found that no grounds have been made out to re-transfer all the proceedings to the City Civil Court under Clause 13 of the Letters Patent. In the result he., dismissed Application No. 1239 of 1975.

3. The present appeal by the judgment-debtor is against the order of the learned Judge dismissing the application for re-transfer to the City Civil Court. We find that the order of the learned Judge in Application No. 757 of 1975 transferring the suit and the two applications filed by the judgment-debtor for setting aside the ex parte decree and for excusing the delay in filing the application for set ting aside the ex parte decree was without jurisdiction. Clause 13 of the Letters Patent empowers the High Court to remove and to try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Presidency of Madras subject to its superintendence, when the High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on, the proceedings of the said High Court. This power under the Letters Patent is under extraordinary original jurisdiction and from the wording of the said clause, it is confined to remove and to try and determine any suit. This contemplates the existence of a suit pending. It is admitted in this case that a decree was passed ex parte and the suit was no, longer pending. No doubt, after the suit was decreed, two applications were filed for purposes already mentioned. But the filing of the two applications after the suit was decreed will not make the suit pending, and as such, the transfer of the two applications along with the suit to the High Court under Clause 13 of the Letters Patent is without jurisdiction. It naturally follows that the order being void and without jurisdiction, it should be taken as not having been in existence at all. The result will be the two applications filed for setting aside the ex parte decree and for excusing the delay in seeking to set aside the ex parte decree will be before the City Civil Court for being disposed of according to law. In this view, it is not necessary to proceed further with the appeal, because the two applications were in law never before the High Court. The result is the two applications, one for setting aside the ex parte decree and the other for excusing the delay in seeking to set aside the ex parte decree will be remitted to the City Civil Court for being disposed of on merits. We refrain from dealing with the merits of the case dealt with by learned Judge. The City Civil Court will dispose of the matter without in any way being influenced by the observations made by the learned Judge or by us. The appeal is allowed. There will be no order as to costs.


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