E KRISHNAMURTHY Vs. ABDUL JAFFAR

JUDGEMENT

(1.) THE above appeal has been filed under Clause 15 of the letters Patent against the order of a learned single Judge dated 5. 9. 1991 dismissing C. M. A. No. 837 of 1991 thereby confirming the order of the learned trial Judge dismissing the application filed by the appellants under Order 9 rule 13 of the Code of Civil Procedure, thereby declining to set aside the exparte decree passed in the matter. Aggrieved against the rejection of the application to set aside the exparte decree, the appellants filed, as noticed earlier, C. M. A. No. 837 of 1991. THE learned single Judge was not inclined to agree with the reasons assigned by the appellants for the non-appearance and therefore dismissed the appeal. Hence the above letters Patent Appeal.

(2.) EVEN at the initial stage, Mr. R. Thiagarajan, learned counsel for the respondent, raised an objection on the maintainability of the appeal relying upon the decision reported in Resham Singh Pyara Singh v. Abdul sathar, 1996 (I) CTC 185 where under the Apex Court held that no Letters Patent appeal could be maintained in similar circumstances. Mr. T. V. Ramanujam, learned senior Counsel appearing for the appellants, invited my attention to a Division bench Judgment of this court reported in V. S. Boopathi Vijayaraghavan Chettiar v. C. S. B. B. Radha Rukmani Ammal, 1984 T. L. N. J. , 392 and contended that unlike the decision of the Apex Court, the decision of the Division Bench is directly in respect of an application filed under order 9 Rule 13 of the Code of Civil procedure and the further orders on appeal passed thereon. In Rukmani v. H. N. Thirumalai Chettiar, A. I. R. 1985, Mad. 283, yet another Division Bench of this Court held that Letters Patent Appeal against the order initially passed under order 39 Rule 1 of the Code of Civil Procedure is maintainable against the order passed in exercise of appellate jurisdiction in a civil Miscellaneous appeal by a learned single Judge of this Court.