KOMMINENI KOTIAH Vs. MUVVA NARASIMHAM

JUDGEMENT

(1.) THE facts are briefly these. The petitioner put in a petition, under Order 9, Rule 13, Civil Procedure Code, praying that the ex parte decree passed against him, on 18th February, 1946, in O.S. No. 796 of 1945 on the file of the District Munsiff's Court, Guntur, be set aside and the suit restored to file. The learned District Munsiff passed an order dated 3rd July, 1946, the material portion of which runs as follows:

(2.) BY 2nd August, 1946, the petitioner, admittedly, paid only Rs. 10, the day costs, to the respondent's vakil. He did not deposit the Rs. 128 -4 -0, the costs of suit. He put in a petition to allow him to furnish Immovable property as security for that amount. That petition was rejected. So, he filed an appeal against the order of the District Munsiff in the Court of the District Judge, Guntur, on 24th August, 1946. The learned District Judge rejected that appeal on the ground that the order of the learned District Munsiff dated 3rd July, 1946, was the final order in the case and that the appeal had been filed 41 days after that date, excluding the time required for obtaining the copies of the decree and judgment and was thus barred by limitation. He rejected the contention of the petitioner's counsel that the order of the District Munsiff dated 3rd July, 1946, was only a conditional order and not a final one. Hence this petition.

(3.) IN the present case, there was no further order of the District Munsiff after the final two -headed order passed on 3rd July, 1946. So, I am of opinion that the learned District Judge's order was right in law, in view of the ruling in Ramayya v. Lakshmayya, (1944) 1 M.L.J. 381 :, I.L.R. 1945 Mad. 203 and should not be disturbed. It was urged that this would cause hardship to parties made subject to a two -headed order like the one in question, as they could not both try to fulfil the condition within the time fixed, and appeal in case they found themselves unable to fulfil the condition within that time. But mere hardship to parties is no valid reason to deviate from settled law; that is a matter for the Legislature, and not for Courts. Besides, once the law is known, parties who are careful will appeal against such orders in time, while trying also to fulfil the conditions meanwhile, as there is nothing to prevent them from withdrawing their appeals, which cost but little, in case they fulfil the conditions. This petition deserves to be, and it is hereby dismissed, but without costs, seeing that the petitioner has evidently filed this petition relying on the two rulings cited by him, and not being aware of the later ruling in Ramayya v. Lakshmqyya1 which has given the quietus to such contentions.