G MADANLAL Vs. P PADMA BAI

JUDGEMENT

(1.) DEFENDANT is petitioner. Respondent/plaintiff filed the suit based on a promissory note dated 7th May, 1982 for Rs. 16,887. DEFENDANT put forth the claim that she had entrusted her jewels to plaintiff' ; s husband, who was having a safety vault, and on his death, plaintiff was having possession of the jewels, and therefore, unless the jewels are returned, the suit claim is not maintainable. As defendant came forward with a claim that the jewels were kept as security for the loan taken, the court below held that there was a triable issue and hence, ordered deposit of Rs. 1,500 to be made on or before 16th November, 1983 failing which, the petition for leave to defend would stand dismissed. On the Court fixing the amount at Rs. 1,500 this revision had been preferred stating that even the said condition ought not to have been stipulated.

(2.) IT is not in dispute that the suit had been decreed ex parte on 17th November, 1985. This order granting leave to defend was (ordered on) 24th October, 1984. Mr. Raghupathi, learned counsel for the respondent, would submit that as the suit itself had been decreed ex parte, the present revision petition filed on 30th July, 1985 by applying for the copy of the order oh 17th November, 1984, the date on which the decree was passed, is not maintainable.

(3.) THE order passed by the Court below is not one as against which an appeal could lie. It is only as against the consequential order resulting in an ex parte decree being passed, an appeal lies. But the order granting conditional leave touches upon the jurisdiction aspect, and if a court fails to exercise the said jurisdiction legally or commits material irregularity, then under Sec. 115 (1) (c) it is a revisable order. Even then, it has to be seen whether it would come within the proviso to Sec. 115 (1 ). By not complying with the condition, which according to the defendant was uncalled for, it had resulted in the final disposal of the suit. Certainly, on such non-compliance, it had led to a consequential order of an ex parte decree being passed. Hence, Sub-c1. (c) to the proviso applies to the instant matter.