S S BALAKRISHNA AIYAR Vs. MUTHAMMAL

JUDGEMENT

(1.) THE decree in Original Suit No. 138 of 1920 is one passed under Order 17, Rule 3 of the Civil P. C., as is clear from the judgment. THE mere fact that the Vakil said he had no instructions after he had appeared for the parties at many hearings does not mean that he withdraws from the undertaking in his vahalat unless it is so stated. We must, therefore, hold that there was an appearance and Order 17, Rule 3 applies.

(2.) APPELLANT ought, therefore, to have filed an appeal against the decree : Vide Pa tin-hare Tarkalt Rama Mannadi V/s. Vellur Krishnan Menon (1903) 26 Mad. 267 and Gundan V/s. Kamakha Rama Chetti (1916) 3 L.W. 524. The filing of an application to sot aside the decree, as if it had been made under Order 9, Rule 13, was, therefore, wrong, as also the appeal from the order thereon. This appeal must, therefore, be dismissed with costs.