SELLAMMAL Vs. M NARAYANASAMY NAIDU

JUDGEMENT

(1.) THE plaintiff is the appellant herein. THE plaintiff has filed the suit O.S.No.183 of 1975 on the file of the Court of the Subordinate Judge, Karur, for recovery of a sum of Rs.12,477.85 on the basis of a mortgage executed by the defendants in favour of the plaintiff on 16.9.1970.

(2.) IN the written statement filed by the second defendant, he has stated that the plaintiff is entitled to claim the principal of Rs.5,110 with interest at 9 per cent per annum and on other grounds.

(3.) LEARNED counsel appearing for the appellant would concede that the suit is dismissed for default and that no appeal will lie. But he would contend that when a civil revision petition has been filed against the order dismissing the application to condone the delay in filing an application for restoring the suit, the learned Judge of this Court has directed the revision petitioner to pursue her remedy in an appeal and that is why the appellant has filed this appeal and inspite of the representation that the appeal might not lie against the dismissal of the suit for default the learned Judge of this Court has directed the plaintiff to pursue her remedy in the appeal. The fact remains that the plaintiff has filed an application to restore the suit, which was dismissed on 8.8.1987 against her, with an application for condoning the delay and when the application was dismissed, she preferred civil revision petition viz., C.R.P.No.4251 of 1981 and the same has also been dismissed. The point raised by the appellant is that when the second defendant has confessed for a decree, opposing the suit claim, the court below should not have dismissed the suit for default and as such the dismissal would amount to failure of exercise of jurisdiction and, therefore, the question whether the dismissal of the suit is correct in law has to be considered in the appeal and when an appeal is not maintainable her remedy is only by way of filing of civil revision petition. In the written statement filed by the second defendant it is stated that the plaintiff is entitled to claim the principal of Rs.5,110 with interest at the rate of 9% per annum among other grounds and he had also confessed for judgment for that amount and has prayed for 15 months time for payment.