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Abdul Kasim Vs. Thambusami Pillai and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in37Ind.Cas.673
AppellantAbdul Kasim
RespondentThambusami Pillai and ors.
Cases ReferredSastrulu v. Kameswaramma
Excerpt:
civil procedure code (act v of 1908), 88, 47, 102, 115 - small cause decree--execution proceedings--claim by exonerated defendant, attained by first court, but dismissed on appeal--appeal or revision, to high court, whether lies. - - we, however, are not satisfied that the second defendant was not a party throughout......to this court lies. we must hold that it does not with reference to section 102 of the code of civil procedure. vide aithala v. subbana 12 m.s 116 . the second appeal (appeal against appellate order), therefore, must be dismissed.3. next he has also filed a revision petition and we have to consider whether the conditions postulated by section 115 of the code of civil procedure are fulfilled. we have been pressed only by one argument, which calls for notice, that the second defendant was not a party throughout the suit in which the decree under execution was passed and that, therefore, the enquiry into his claim was not held under section 47 and no appeal lay. if the lower appellate court heard an appeal which did not lie, it would no doubt have acted with, out jurisdiction and.....
Judgment:

1. The second defendant was a party to the Small Cause suit in which the decree under execution was passed; and the lower Court's judgments were given, the District Munsif's allowing and the Subordinate Judge's dismissing his claim to the attached property.

2. The first question is whether this appeal to this Court lies. We must hold that it does not with reference to Section 102 of the Code of Civil Procedure. Vide Aithala v. Subbana 12 M.S 116 . The second appeal (Appeal against Appellate Order), therefore, must be dismissed.

3. Next he has also filed a revision petition and we have to consider whether the conditions postulated by Section 115 of the Code of Civil Procedure are fulfilled. We have been pressed only by one argument, which calls for notice, that the second defendant was not a party throughout the suit in which the decree under execution was passed and that, therefore, the enquiry into his claim was not held under Section 47 and no appeal lay. If the lower Appellate Court heard an appeal which did not lie, it would no doubt have acted with, out Jurisdiction and interference under Section 115 would be justified. We, however, are not satisfied that the second defendant was not a party throughout. The second defendant, as the decree states, was exonerated, by the plaintiff. But there is nothing before us to show that this exoneration resulted in anything except the dismissal of the suit against him of that there was any such removal of his name from the suit as appears to have taken place in Gadicherla China Seetayya v. Gadicherla Seetayya 21 M.S 45. Vide also Ramaswa ni Sastrulu v. Kameswaramma 10 M. L.J. 126. In these circumstances the 2nd defendant did not cease to be a party to the suit. The subsequent proceedings between him and the plaintiff were, therefore, under Section 47 and the order in them was appealable. There is, therefore, no ground for interfering with the Subordinate Judge's order in revision. The civil revision petition is, therefore, dismissed with costs.


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