V PARTHASARATHI Vs. CHINNAPPAYAN

JUDGEMENT

(1.) THIS is an appeal against the order of Venugopal, J., dated 22nd June, 1979, allowing A. A. O. No. 472 of 1978. The appellant herein was the plaintiff in O. S. No. 855 of 1972 on the file of the City Civil Court, Madras. An ex parte decree was passed against the respondents herein on 25th November, 1.975. The respondents thereafter filed I. A. No. 27441 of 1975 to set aside the ex parte decree. On 13th July, 1976, the Court passed the following order: �Petition allowed on condition that the petitioners deposit Rs. 2,000 towards the cost of the suit on or before 27th July, 1976 failing which the petition shall stand dismissed. Call on 28th July, 1976. � Thereafter, on 7th December, 1976 the Court passed the following order: � �Condition not complied with. Petition dismissed.� �2. Against the order dated 7th December, 1976 the respondents filed the A.A.O. in question. One of the points urged before the learned Judge by the appellant herein was that the appeal was barred by limitation because the appeal should have been preferred against the order dated 13th July, 1976 and not against order dated 7th December, 1976 and if the period of limitation is calculated with reference to the order dated 13th July, 1976, the appeal was barred by limitation.

(2.) THE learned Judge, however, held that it was only the order dated 7th December, 1976 that was the appealable order and not the order dated 13th July, 1976 and consequently the appeal was within time. On merits, the learned Judge found that a direction to deposit an amount of Rs. 2,000 was too onerous and therefore while setting aside the order without expressing any opinion on merits, remitted the I. A. itself back to the trial Court for fresh consideration and enquiry. It is as against this order, the present appeal has been filed.

(3.) THE order passed on 5th July, 1943, in the said Bench decision had set aside the decree and had restored the suit to the file and also posted the suit peremptorily for disposal to a future date, namely, 26th July, 1943. THE use of the expression �before the trial of the suits which are hereby restored to file� occurring in the order dated 5th July, 1943, makes it absolutely and abundantly clear that it is the order dated 5th July, 1943, which was the final and appealable order and not any other order which was passed subsequently. Further, the order of 26th July, 1943, merely recorded the legal consequence of the non-implementation of the conditions imposed by the earlier order and the learned Judges were very careful in not even stating that the petitions were dismissed. Consequently, the facts of that Bench decision have no bearing on the present case.