R ASOKAN Vs. P MUTHUSAMY

JUDGEMENT

(1.) 1. The first respondent/plaintiff filed the suit in o. S. No. 356 of 1996 on the file of the Sub-Court, Namakkal, impleading the first defendant therein and the respondents 2 to 4 as defendants 3 to 5. The said suit was filed for partition of plaintiff's 1/12 share in survey No. 533 and for injunction restraining the defendants 3 to 5 from putting up any new or additional constructions in S. No. 533/1. In the plaint it is specifically stated that in an extent of 3. 3. acres and 23 cents, shown in the 'A' schedule to the deed of acknowledgment of partition, a partition was held between the plaintiff and the second defendant. According to the plaintiff/first respondent, a subdivision was effected. The land in survey No. 533 was subdivided into three portions. Survey No. 533/1 measuring 5 acres 56 cents belongs to the plaintiff and defendants 1 and 2. It is also specifically stated that the plaintiff and defendants 1 and 2 together completely hold survey No. 533/1, which is the suit property. The first defendant filed written statement and paid the court fee for division of his share in the property. When the case was posted on 23. 4. 1998, the first and sixth defendants entered into compromise and a compromise memo was filed and it was recorded on 23. 4. 1998. Immediately on 24. 4. 1998 the matter was posted for counter on 28. 4. 1998. On 28. 4. 1998 counter was filed and the matter was posted for orders on 30. 4. 1998, in the application filed by the petitioner/first defendant in I. A. No. 612 of 1998, with a request to transpose himself as the plaintiff. On 30. 4. 1998 that application was rejected by the Court below on the ground that the first defendant has already been given up and so the petition cannot be maintained. On the same day, the court below passed the decree as per the terms of the compromise memo filed by the plaintiff and other defendants. Aggrieved against the order refusing to transpose the petitioner as the plaintiff, the petitioner has filed the above revision.

(2.) IN view of the abovesaid admitted facts, now we have to decide whether the petitioner is entitled to be transposed as plaintiff, in spite of the fact that the decree has been passed on the basis of the compromise decree.

(3.) IN this case only after filing the application for transposing the first defendant as plaintiff, the decree has been passed. Had the court below properly appreciated the application and allowed the same, the question of passing a decree would not have arisen On that basis the learned counsel for the petitioner has submitted that there is no need to file a separate application or appeal to set aside the decree, as the decree is a dependent or subordinate one to the order impugned in this Revision. While dealing with the similar issue, the learned Judges of the Delhi High Court, in S. K. Bhardwaj v. M. L. Gupta , AIR 1977 Del. 226, has held as follows:- 'When leave is refused to the defendant to appear and defend a suit under 0. 37, C. P. C. , the effect of the refusal of leave to appear and defend is that the allegations in the plaint by a deeming provision stand admitted. The allegations in the plaint being admitted, a decree follows as a consequence of the earlier order of refusal to grant leave to appear and defend. IN my opinion, when a subsequent order, even if it be a decree, is a consequential order to an earlier order and the earlier order is set aside the latter order must also fail and directions to that effect have to be given.