RATNAMMA Vs. DEVASIA

JUDGEMENT

(1.) A mother and daughter, sued to set aside a decree and proceedings in execution thereof against the tarwad of which they were members. Defendants 2 and 3 in that suit were the decree holder and auction purchaser. The suit was contested by them. Issues were settled on 13-1-1125. The ease was posted for evidence to 30-1-1949. On that day both parties applied for adjournment. The case was accordingly adjourned to 17-2-1950 when also both parties applied for adjournment again. The case was adjourned to 5-6-1950. On that day both parties once again applied for adjournment but those applications were given a treatment different from that accorded to similar applications on the earlier occasions. The applications were rejected and the court dismissed the suit. Issue No. 1 which related to whether the decree sought to be vacated was binding or not was found against the plaintiffs as no evidence was adduced notwithstanding the fact that time was taken more than once for the purpose. That issue having been thus found, the remaining issues did not arise for consideration and were not considered.

(2.) The plaintiffs applied for restoration of the suit on the basis that the aforesaid disposal was one under O.9 of the Code of Civil Procedure. The plaintiffs relied upon certain grounds as for an application for restoration under that Order. The application was opposed by the contesting defendants. The first plaintiff was examined in support of the application. There was no counter evidence adduced.

(3.) The court below in its very short order was of the view that the judgment being one on the merits the proper course open to the plaintiffs is to file an appeal against the decree and the application was dismissed, stating "I do not think that there is sufficient ground to allow this petition."