VADAMALAI PILLAI Vs. MUNUSWAMI GOUNDAR

JUDGEMENT

(1.) THE question in these Civil Revision Petitions is whether the District Munsif, acting under Section 73 of the Madras Village Courts Act, is a Court to which the Code of Civil Procedure will be applicable, in particular Order 9, Rule 13 of the Code. The petitioner was the plaintiff in a Village Court which granted to him an ex parte decree. The respondent filed an original petition before the District Munsif having jurisdiction to set it aside. On the day the matter was posted for hearing, the petitioner was absent with the result the ex parte decree was set aside and the suit stood dismissed. The petitioner, thereafter, filed an application to set aside the ex parte order, with an application to excuse the delay in filing it. The Munsif disposed of the main application on the ground that he had no power to set aside his ex parte order. In his view, Order 9, Rule 13 of the Code of Civil Procedure did not apply to the proceeding. On that view, he dismissed both the applications. These petitions are directed against those orders.

(2.) IT seems to me that the view of the Court below cannot be sustained. It is true that Section 73 of the Madras Village Courts Act contains the procedure for the District Munsif to follow in a petition to revise the order of a Village Court. It prescribes the period of limitation for filing such an application and confers also powers of stay of execution pending disposal of the main petition for revision. The grounds on which the Munsif can interfere with an order of the Village Court are also there in Section 73. Actually the language employed in this section is that the District Munsif may, on a petition being presented within the prescribed time by a person aggrieved by a decree of the Village Court, set it aside on proof of any one or all of the grounds mentioned. The point is whether the expression 'District Munsif' has been used in the section in the sense of nominating a person as a persona designate or to indicate the Court of the District Munsif. I think, there is no reason to think that the ' District Munsif in the section is to act as & persona designata and not as a Court. He is vested, as a Court, with all the powers of the Code of Civil Procedure, subject to specific exceptions. No doubt the Madras Village Courts Act contains elaborate provisions governing the trial of a cause in the Village Court, and the remedy by way of revision to the District Munsif. But once the District Munsif under Section 73 is held to act as a Court, in addition to the powers under the Madras Village Courts Act, he will have also the powers of a Court under the Code of Civil Procedure unless in particular context such an interpretation leads to repugnancy or inconsistency. Rama Rao v. Pitchayya : (1927) 53 MLJ 131 , held that a revision under Section 115 of the Code of Civil Procedure would lie against an order made by a District Munsif under Section 73 of the Madras Village Courts Act. This is on the basis that the District Munsif is a Court subordinate to the High Court. It may be seen that if the District Munsif under Section 73 acted as a persona designata, clearly he will not be a Court within the meaning of Section 115 of the Code of Civil Procedure with the result that no revision would lie under that provision to this Court. Ramesam, J., in that case was of opinion:

(3.) THE petitions are allowed. No costs.