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Parvataneni Mallikaraja Pudu and ors. Vs. Kachimalla Nalla Venkaya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad971
AppellantParvataneni Mallikaraja Pudu and ors.
RespondentKachimalla Nalla Venkaya and ors.
Cases ReferredM. Venkatayya v. B. Venkata Subbiah A.I.R.
Excerpt:
- .....that there was no order refusing or rejecting his application in respect of the passing of the final decree.2. as pointed out by the learned district munsif from the fact that the petitioner applied for a copy of the final decree and got an endorsement only in february 1920, that no final decree was passed in the suit, it is clear that he must have been under the impression that a final decree had been passed on his petition for the same. i see no reason whatever why the principles of those decisions should not be applied to this case in which it has been held that the later execution applications in respect of reliefs not obtained on previous petitions should be properly treated as a mere continuation of the previous proceedings. it is not a case in which there was not an.....
Judgment:

Srinivasa Ayyangar, J.

1. I have come to the conclusion in this second appeal that it must be allowed. If I should not, the result, shortly stated, would be that on account some mistake or inadvertence of the Court the party, transferee decree-holder, the appellant before me, would have to lose a valuable decree for really no fault of his own. I am unable to agree with the learned Subordinate Judge in the Court below that there was any fault or default on the part of the appellant when he made an application on 17th June 1918, which was in terms for recognizing his transfer and also for making the decree final and the Court finally made the order thereon ' Transfer proved already accepted.' One of the two things must be held to have followed. The petitioner might have believed that all the reliefs prayed for were granted to him or else the transfer alone being recognized his prayer with regard to the other reliefs is not disposed of. It should be noted that there was no order refusing or rejecting his application in respect of the passing of the final decree.

2. As pointed out by the learned District Munsif from the fact that the petitioner applied for a copy of the final decree and got an endorsement only in February 1920, that no final decree was passed in the suit, it is clear that he must have been under the impression that a final decree had been passed on his petition for the same. I see no reason whatever why the principles of those decisions should not be applied to this case in which it has been held that the later execution applications in respect of reliefs not obtained on previous petitions should be properly treated as a mere continuation of the previous proceedings. It is not a case in which there was not an application according to law by the party for the purpose of a final decree being passed.

3. If due to some mistake or inadvertence of the Court such order was not passed, the application must still be regarded as pending and I agree entirely with the view taken by the District Munsif in the Court of first instance, that the right view to take in the matter is either to treat the order itself as amounting to an order for the passing of a final decree or else to treat the petition as still pending and to make the order.

4. I am unable to understand how the learned Subordinate Judge regarded as applicable to this case the decision in M. Venkatayya v. B. Venkata Subbiah A.I.R. 1922 Mad. 65. In that case, as pointed out by the learned Judges, the application for the passing of a final decree or order absolute Was dismissed by the Court, but there has been no such dismissal in this case. Further there was ample room and justification having regard to the circumstances and the language employed to induce the appellant to believe that an order as prayed for had been made. There were no circumstances whatever, in the case cited for believing that the petition was not disposed of but was pending. That is not so here.

5. I am satisfied that the judgment of the lower Court in the matter is clearly wrong. The appeal is allowed, the order of the lower Court is set aside and the order of the learned District Munsif in the Court of first instance is restored. The appellant will have his costs in this Court.


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