SELAMBAL Vs. MANNANKATTI

JUDGEMENT

(1.) The petitioners filed a suit in the District Munsif Court, Tirukoilur, for redemption of a mortgage against ,the respondent. The suit was dismissed for default. The petitioners then filed an application under Order 9 R. 9 C.P.C., to set aside the dismissal of the suit. In that application the learned District Munsif passed an order to the effect that the application will be allowed on payment of costs by the petitioners to the respondents on or before 2-11-1971, and he further directed the application to be called on 3-11-1971. When the application was called on 3-11-1971, it was found that the petitioners had not deposited the costs. The District Munsif thereupon dismissed the application after recording the fact that costs had not been paid.

(2.) The petitioners preferred an appeal to the District Court. The appeal was particularly directed against the order daed 23-10-1971. The District Judge however dismissed the appeal as incompetent. He made a reference to the two orders passed by the District Munsif one on 23-10-1971 and the other on 3-11-1971. After analysing the nature of the two orders, he held that the former was a conditional order and not appealable, and the latter was an appealable order but not appealed against. On this reasoning, the appeal was dismissed.

(3.) In this revision, Mr. M. N. Padmanabhan, the petitioners, learned counsel, urges that the District Judge failed to exercise his jurisdiction by taking a wrong view about the appealability of the order dated 23-10-1971. Learned counsel relied on a Division Bench ruling of this Court reported in Ramayya v. Lakshmayya, (1944) 1 Mad LJ 381: (AIR 1944 Mad 383). Learned counsel pointed out that the order which the ,Division Bench held as appealable in that case was also a conditional order for setting, aside an ex parte decree, the condition being payment of costs on or before a particular date. Learned counsel pointed out that even though there was a follow up order subsequently, the Division Bench held that the. earlier order was appealable.