RAMASWAMY REDDIAR Vs. CHINNA SITHAMMAL

JUDGEMENT

(1.) THESE two civil miscellaneous appeals are against the dismissal of two applications to have two appeals restored. A. S. Nos. 37 of 1971 and 56 of 1971 are connected appeals as they arise out of a common judgment. In A. S. 56 of 1971 there was deficiency of court -fee and the court ordered the same to be paid by 17 -2 -1973. To that date A. Section 37 of 1971 also stood posted as it is connected with the other appeal. The appellants in both the appeals did not appear on 17 -2 -1973 and the deficit court -fee had not been paid. Therefore, the counsel reported 'no instructions' and both the appeals came to be dismissed on that day (17 -2 -1973). Later, the two applications were filed for having the appeals restored on the ground that the first appellant in A.S. 56 of 1971, who was in charge of the matter, had been laid up and that therefore, proper instructions could not be given to the counsel regarding the payment of court -fee. This case was not accepted by the court below and the applications have been dismissed. These appeals are filed challenging the abovesaid orders of dismissal.

(2.) MR . O.V. Baluswami, the learned counsel for the first respondent in both these appeals who is the contesting respondent, raises a preliminary objection that the appeals do not lie. Reliance is placed on the decision of Natarajan, J., D/ -2 -5 -1974 in C.M.A. No. 130 of 1973 C. Kalahasti, President of the Mg. Committee of Thyagaraya Chettiar Education Institution Madras v. Munuswami Chettiar __ short noted in 1974 TNLJ 243 : (AIR 1975 Mad 3). That was a case where the first court refused to grant a temporary injunction under Order 39, Rule 1, C. P. Code. Against that order a civil miscellaneous appeal was filed and in that appeal, a petition for temporary injunction under Order 39, Rule 1, C. P. Code was filed. The appellate court dismissed the said petition. As against that order, an appeal was filed to this court and Natarajan, J., held that the appeal does not lie. It is pointed out that even though an order under Order 39, Rule 1, C. P. C. is an appealable order under Order 43 Rule 1, the order having been made by an appellate court, sub section (2) of Section 104 of the Code applied and that, therefore, the appeal was not competent. On the facts of that case, if I may say so with respect, the decision of Natarajan, J., is unexceptionable. As seen above, the order which was appealed against, though made under Order 39, Rule 1, had been passed in an appeal which itself was one against an appealable order. The appeal before the court which passed the order questioned before Natarajan, J., was really one coming under Section 104, that is, an appeal against an appealable order. But, the observations of the learned Judge are sought to be construed as laying down the law that no appeal lies against an order passed in any appeal even though the order is an appealable one, under one or other of the clauses of Order 43, Rule 1, C. P. Code. The learned Judge could not have possibly meant it so. If the learned Judge has really stated that an order passed even in a regular appeal coming under Section 96 of the Code is not appealable, it would be purely obiter, for, in the matter before the learned Judge, the order had been passed, not in an appeal coming under Section 96, but in an appeal coming under Section 104.

(3.) IN the present case, the order of the court below is one under Order 41, Rule 19 of the Code, made in appeals under Section 96. That order is certainly an appealable one, as per Order 43, Rule 1 (t) of the Code. I am quite clear that sub -section (2) of Section 104 has no application to an order made in an appeal coming under Section 96.