S. SUNDARAM IYER Vs. SWAMINATHA PILLAI AND ORS.

JUDGEMENT

(1.) THIS petition is to revise the order of the Subordinate Judge of Mayuram in O.P. No. 4 of 1959. This original petition was an unfiled appeal at the instance of the first defendant in a suit on a promissory note. A decree had been passed by the District Munsif and the first defendant appealed against that decree in forma pauperis. The Subordinate Judge, without complying with the provisions of Order 44, Rule 1(2), Civil Procedure Code, and satisfying himself that the decree was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust, issued notice to the respondent. After the respondent appeared, the Subordinate Judge considered this question in the presence of the respondent and came to the conclusion that the decree appealed against was. neither contrary to law nor unjust. He also discussed the merits of the case put forward by the appellant and found no substance in them.

(2.) AGAINST the order dismissing the appeal, Mr. Sundaralingam urges two points. The first is that after having issued notice to the respondent under Order 41, there was no jurisdiction in the learned Subordinate Judge to consider the question of the decree being unjust or contrary to law, which he was bound to consider under Order 44, Rule 1(2), Civil Procedure Code. This question has come up for consideration in Suryanarayanamurthi v. Nagachandramowli Nagachandramowli : AIR1936Mad842 . There the facts were, an appellate Judge received an application to appeal in forma pauperis and without considering whether or not there was any substance in the appeal, he issued notice to the respondent. After the respondent appeared the learned Judge proceeded to consider whether the decree was contrary to law or unjust, and coming to a conclusion in the negative on that point, he dismissed the appeal. The procedure adopted by the learned Judge was questioned as erroneous, and Horwill, J., in dealing with that point, observed thus:

(3.) IT may be seen from this passage that the point for determination before the Bench was whether by reason of the notice issued to the respondent, he had acquired the right to be heard at that stage before the appeal was admitted. The Bench ruled that he had no such right. I am unable to see how this decision conflicts with the view taken by Horwill, J., in Suryanarayanamurthi v. Nagachandramowli : AIR1936Mad842 . I am in respectful agreement with the view taken by Horwill, J., I find that in this case the Subordinate Judge who heard the objection after notice had been issued to the respondent was the same Subordinate Judge who had issued the notice to the respondent. I can therefore accept his statement that he issued notice without considering the question of the illegality of the decree appealed from. I find no want of jurisdiction in the learned Subordinate Judge in considering this question at the stage at which he did.