SYNDICATE BANK Vs. M. ALAGAPPAN

JUDGEMENT

(1.) The plaintiff in O.S No.77 of 2006 on the file of the Sub Judge, Devakottai is the appellant in this second appeal. The appellant filed the said suit for recovering a sum of Rs.2,26,955/- from the defendants herein. The plaintiff is a Nationalised Bank. The case of the plaintiff is that the first defendant has availed over draft facility upto Rs.3.00 lacs and agreed to pay the said sum with subsequent interest. The second defendant stood as a guarantor. The defendants executed a renewal letter on 15.07.2003. The first defendant committed default. Therefore, to recover the same, the suit was filed on 14.07.2006. There can be no doubt that the suit was filed within the limitation period though literally on the last date. It appears that due to paucity of stamp papers, the suit was filed by affixing only a sum of Rs. 100.00 as court fee. However, on the same day, an application was taken out seeking extension of time to pay the deficit court fee and order obtained. The deficit court fee was duly paid within the extended time granted by the trial court. After the suit summons were issued to the defendants, they also entered appearance and filed I.A No.93 of 2007 seeking rejection of plaint. Vide order dated 28.02.2008, the application filed under Order 7 Rule 11 of CPC was allowed and the plaint was rejected. The ground on which the said order was passed was that the plaintiff did not pay the entire court fee within the limitation period. The learned trial Judge declined to take note of the fact that the deficit court fee eventually came to be paid. Questioning the same, the appellant herein filed A.S No. 16 of 2011 before the District Court, Sivagangai. By the impugned judgment and decree dated 30.09.2011, the first appellate court came to the conclusion that the filing of the first appeal was not maintainable and that a Civil Revision Petition only will lie. Questioning the same, this Second Appeal came to be filed. The second appeal was admitted on the following substantial questions of law :

(2.) Heard the learned counsel on either side.

(3.) It is well settled that an order rejecting plaint will amount to a decree and as such only an appeal under Section 96 (2) of CPC will lie. This is evident from the definition of the decree provided under Section 2(2) of CPC. The first appellate court had gone wrong in holding that only a CRP will lie and not an appeal under Section 96 of CPC. Therefore, the first substantial question of law is answered in favour of the appellant.