MANILAL CHUNILAL CHOKSI Vs. MANILAL DAMODARDAS MODY

JUDGEMENT

(1.) The plaintiff filed this suit on May 24, 1924. It was described in the plaint as a summary suit. The endorsement on the plaint stated that it was a summary suit and as such it appears, it was admitted. The cause of action arose more than six months before the plaint was filed and consequently the suit as a summary suit was barred under Art. 5 of the Indian Limitation Act. When the defendants were served with the summons, defendant No. 2 took out a Chamber summons against the plaintiff, asking for an order that the suit should be removed from the list of summary suits, or in the alternative that he might be granted liberty to defend the suit and file his written statement. Strictly speaking the defendant could not be entitled to the first relief he asked for in this summons, because as long as a suit is a summary suit he cannot appear until be has got leave to defend, and it could only be when the defendant had got leave to defend that he would be enabled to ask the Court to dismiss the suit as barrel by limitation. The plaintiff then took out a summons asking for an order deleting the word "summary" from the title of the plaint and annexures and transferring the suit to the list either of long causes or short causes. The two summonses were heard together. The Judge ordered that the plaintiff and to delete the word "summary" from his plaint ant within three days and that the suit should thereof from the list of summary suits and transferred be at liberty annexures be removed the list of contested short causes. The plaintiff was also ordered to pay all the costs of the suit up to the date incurred by the defendants.

(2.) The defendants have filed an appeal against that order.

(3.) The respondents have raised a preliminary objection that the appeal is not competent. It is not disputed that an appeal can only He under clause 15 of the Letters Patent, and the appellants must, therefore, show that the order appealed against is a judgment.