DEVAKI ALIAS DEVI Vs. S VANI

JUDGEMENT

(1.) THE revision is directed against the order passed by the learned I Additional Sub-Judge, Erode in I.A.No.62 of 2000. THE defendants are the revision petitioners. THE respondent herein filed suit O.S.No.220 of 1998 on instrument herein filed suit O.S.No.220 of 1998 on instrument dated 25.3.1996. THE defendants in the suit are the legal representatives of the deceased Thiyagarajan.

(2.) THE suit was posted for the evidence of the defendants on 6.7.1999. As the defendants failed to appear on that date, ex parte decree was passed. THEreupon, the first defendant filed an application underO.9, Rule 13, C.P.C. stating that she fell sick of diarrhea and vomiting and that she could not attend the Court and that therefore, the ex parte decree may be set aside. THE plaintiff filed counter resisting the above application.

(3.) AS perO.43, Rule 1(d), C.P.C. an appeal shall lie against the order under Rule 13 ofO.9 rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte. It is contended by the learned counsel for the respondent/ plaintiff that the order passed by the trial Court imposing conditions is a final order and that the appeal has to be filed within 30 days from the date of said order. On the question as to from which date, the order will become final, learned counsel relies upon a decision reported in Kotaiah v. Narasimham Kotaiah v. Narasimham Kotaiah v. Narasimham (1948)2 MLJ. 596: A.I.R. 1949 Mad. 469. The facts of the above case will show that the trial Court passed order on 3.7.1946 directing the petitioner to deposit the amount on or before 2.8.1946 failing which the petition will stand dismissed automatically. The court relying upon a decision reported in C.Ramayya v. M.Lakshmayya C.Ramayya v. M.Lakshmayya C.Ramayya v. M.Lakshmayya (1945)1 MLJ. 339: I.L.R. 1945 Mad. 203 has held thus: "Where the petitioner had to do certain things, namely, to deposit costs, etc., into Court, to get the ex parte order set aside, with a direction that if he did not do so, the petition was to stand dismissed with costs, the order would be a final one and the appeal should be filed within thirty days." The above decision will show that the order passed by the trial Court in this case, imposing certain conditions to be complied with on or before 28.9.2000, is a final order. An identical question also came up for consideration before this Court in the decision reported in Balarama v. Subbarama (1953)1 MLJ. 40: A.I.R. 1953 Mad. 360. In the above decision, the Court has held thus: "Where an application is made by the defendant to set aside an "ex parte" decree passed against him and the Court makes a conditional order directing the decree to be set aside on certain conditions in default of which the application is to be dismissed, such an order is final for the purpose of an appeal allowed underO.43, Rule 1(d), C.P.C. For an appeal from such an order time begins to run from the date the order is made and not from the date when the Court makes a further order dismissing the application on the failure to perform the condition." The contrary view expressed in Rajagopalachari v. Thathachariar A.I.R. 1925 Mad. 1182 was not approved in the above decision. In the above decision, the Division Bench Judgment of this Court i.e., C.Ramayya v. M.Lakshmayya C.Ramayya v. M.Lakshmayya C.Ramayya v. M.Lakshmayya (1945)1 MLJ. 339: I.L.R. 1945 Mad. 203 is followed. The Court has further observed thus: "With great respect I am in agreement with the view taken by Mockett and Bell, JJ. that the first order in such cases must be regarded as final and appealable. It is tantamount to a rejection of an appeal unless certain conditions are satisfied. It is open to a party affected by such an order to appeal on the ground that the conditions imposed are too onerous, that the ex parte decree should be set aside or the suit restored to file without any terms at all." It is, thus, seen from the above decision that conditional order is a final order and that it is appealable.