T N RAJAGOPALACHARI Vs. NARSIMHA THATHACHARIAR

JUDGEMENT

(1.) The first defendant is the petitioner. The facts of the ease are clearly set out in the order of the learned District Judge. These appear to be as follows : a money- decree was passed ex-parte against the petitioner. He put in an application to set aside the ex-parte decree and on that application the learned District Munsif passed an order to this effect that "the ex-parte decree will be sot aside if in two weeks petitioner pays to plaintiff all costs of suit so far incurred unconditionally and further he puts the suit amount and interest decreed into Court in 14 days. If he does not pay, petition will stand dismissed with costs." He also made a note on the order that the petition is to be called for final disposal on the 13 September, 1923. It appears from the B diary that this application was postponed from time to time, and it was posted for final disposal on 20 September, 1923. On that date an application was made by the petitioner for permission to give immovable property as security for the amount. The District Munsif disposed of this petition as well as the original petition, Miscellaneous Petition No. 538 of 1923, namely, the petition to set aside the ex-parte decree together and ordered : "Money not put into Court. Application rejected." This order is dated the 2nd of October, 1923 and this was the order that was appealed against before the District Judge. The District Judge, on the authority of a decision in Venkataswami Naidu V/s. Shanmugam Pillai (1916) 32 I.C. 984 held that it was open to the petitioner to file an appeal against the earlier order passed by the District Munsif, dated the 29 of August, 1923, and since he had not done so, that order became final and, therefore, he could not prefer the appeal against the order dated the 2nd of October, 1923. The decision in Venkataswami Naidu V/s. Shanmugam Pillai (1916) 32 I.C. 984, laid down the proposition that an order like the one passed by the District Munsif in this case was a final order and appeal lay against such order under Order 43, Rule 1, Clause (d), of the Civil P.C. But this decision has been set aside in Letters Patent appeal by their Lordships Mr. Justice Oldfield and Mr. Justice Bakewell in Venkataswami Naidu V/s. Shanmugam Pillai (1917) 6 L.W. 757, in which the learned Judges held that the order was only a conditional order and that there is no appeal against it. Therefore, according to this, it was not open to the petitioner to prefer Ian appeal against the prior order passed by the District Munsif, and the learned District Judge should, therefore, be asked to hear the appeal against the last order on the merits. It is true that the District Judge has expressed his opinion on the appeal with regard to the merits also in a tentative way, but the last paragraph of the judgment clearly shows that his order is based upon the preliminary objection which he upheld. Therefore, the roper order in this case to be passed is to set aside the order of the District Judge and send it down for fresh disposal acording to law.

(2.) Mr. Narasimhachariar, the learned vakil for the respondents, argues that though the prior order is not appealable, still it is a final order in the sense that the District Munsif had no jurisdiction to extend the time given in that order and in support of his argument he has brought to my notice the following decisions : Idumbu Parayan V/s. Pethi Reddy (1920) 43 Mad. 357, C.R.P. No. 110 of 1922 and Gopala Aiyer V/s. Sannasi (1915) 3 L.W. 29. I do not desire to express any definite opinion on the question with regard to the interpretation of this order, because that will be a question which will legitimately arise before the District Judge when he considers the appeal on the merits. But since these decisions have been brought to my notice I might as well express my opinion with regard to their relevancy. It appears to me that the passage in Idumbu Parayan V/s. Pethi Reddy (1920) 43 Mad. 357, is only an obiter dictum and the actual decision in the case has nothing to do with the point now raised by the learned vakil for the respondent, and further the obiter dictum refers to the construction of a mortgage decree; and in that respect the order referred to by the learned Judges certainly is distinguishable from the order under appeal in this case. The same may be said about Gopala Aiyer V/s. Sannasi (1915) 3 L.W. 29. There the "default clause" was inserted in a decree for specific performance and it was held that the Court had no jurisdiction to extend the time conferred by the decree. That also is a case quite different from the present one, where we have nothing to do with the consideration of a decree passed in the suit. I might also observe that the decision in C.R.P. No. 110 of 1922 is clearly inapplicable to the facts of the present case, because, so far as the facts appear from the short notes, the learned Judge who disposed of that decision says that the application for extension of time was made after the expiration of the period mentioned in the order, thereby indicating that if the application was made before the expiration of the time, certainly the learned Judge would have dealt with it. In this ease all the parties, as well as the Court, treated the prior order as a conditional order, because it appears, as I have already pointed out, from the note on the order passed on the first occasion, that the petition was to be posted for the 13 September, 1923, meaning thereby that no final order has been passed upon it and the learned District Munsif would pass final orders only on that day, and the subsequent history of the application also shows that it was never intended to treat the order as a final one. The case is accordingly remanded to the District Judge to be disposed of according to law.

(3.) The costs of this petition will be costs in the case.