PEETHAMBARAN Vs. MUNSIFF COURT

JUDGEMENT

(1.) This Original Petition was disposed of by me on 5th November, 2002 when it came up for admission by giving a direction to the Munsiff, Kayamkulam to receive the appeal filed by the petitioner against the judgment and decree passed in O.S. No. 655 of 1998 on the file of that court. After pronouncement of this judgment, I have received a copy of the judgment passed by the Supreme Court in Salem Advocate Bar Association v. Union of India (WP (C) Nos. 496 of 2002 and connected case ( 2002 (3) KLT 920 SC) in which the Apex Court has considered the effect of R.9 of O. XLI of the Code of Civil Procedure. In view of the principle laid down by the Supreme Court in Salem Advocate Bar Associations case (supra) the judgment passed in the O.P. was suo motu reviewed and the matter was again heard.

(2.) The petitioner in this Original Petition is the defendant in O.P. No. 655 of 1998 on the file of the Munsiff Court, Kayamkulam. The suit was decreed against him. He preferred an appeal challenging the judgment and decree and presented the same before the Court which passed the decree. According to the petitioner, in view of the provisions contained in O. XLI R.9 of C.P.C. the appeal has to be presented before the Court which passed the decree. The grievance of the petitioner is that in spite of the specific provisions contained in O. XLI R.9 CPC, the learned Munsiff is refusing to receive the appeal. Hence the Original Petition was filed for a direction to the Munsiff to receive the appeal.

(3.) Even though O. XLI R.9 CPC deals with registry of memorandum of appeal in the court which passed the decree, the provisions contained in O. XLI R.1 are not amended. O. XLI R.1 enjoins that appeals are to be filed before the Appellate Court. In Salem Advocate Bar Associations case (supra) the Apex Court after considering the effect of the amended R.9 of O. XLI CPC held as follows: -