KUNJANNAM Vs. A ISSAC

JUDGEMENT

(1.) The plaintiffs in O.S. 368 of 1955 on the file of the Munsiffs Court, Ernakulam, whose petition I.A. 299/59 for restoration of the suit dismissed for default had been dismissed, has filed this revision petition. The suit was based on a promissory note executed by the defendant to deceased Mannulli Chacko Joseph whose wife and minor children are the plaintiffs. The suit had undergone a number of adjournments. The defendant had been declared ex parte and the plaintiff had only to prove the claim and produce the succession certificate for which application had already been made and was pending in the same Munsiffs Court.

(2.) While the suit was posted for final hearing on 23-1-1959, the plaintiff again applied for adjournment. It was refused and suit was dismissed for default. Application for restoration of the suit was made by the plaintiff and that was also dismissed, and the revision petition has been filed against the aforesaid order.

(3.) The learned Munsiff besides stating that there was no excuse for not being ready for the suit which had already been adjourned for a number of times has also observed that the petition is even otherwise, not maintainable. Probably what the learned Munsiff had in mind even though not expressed is that the dismissal of the suit being one under O.17, R.3, a dismissal on the merits for want of evidence, the remedy was only by way of appeal. So the short point for decision in this petition is whether the dismissal for default was under R.2 or R.3 of O.17.