ATHAMSA ROWTHER Vs. GANESAN

JUDGEMENT

(1.) The respondents had obtained in the Court of the District Munsif, Tiruvalur, against the appellant a. preliminary mortgage decree ex parte on 2nd September, 1912, and a final decree ex parte on 15 September, 1917. On 20 November, 1920, the appellant applied in I. A. No. 39 of 1921 to the District Munsif to set aside the ex parte final decree. This was allowed on 17 December, 1921. The entry on the notes paper referring to this runs :--" Ex parte decree set aside as per order on I. A. No. 39 of 1921. For written statement and draft issues adjourned to 6 January, 1922." The order itself is headed, " This is a petition to set aside the ex parte final decree passed against the petitioner," and concludes " It is ordered that the petition be and the same hereby is allowed." When the re- hearing of the application for final decree came on, it was contended before the District Munsif, a different Judge from the one who passed the order on I. A. No. 39 of 1921, that the notes paper showed that his predecessor had set aside not only the final decree but the preliminary decree as well, because, he had called for written statement and draft issues and that therefore the whole suit should be taken up again. The District Munsif decided against that contention, found that the application for the final decree was barred by limitation, and he therefore dismissed the application On appeal the lower appellate Court held that the District Munsif's order on I. A. No. 39 of 1921 had set aside both the preliminary and final decrees. He reversed the District Munsif's order and remanded the whole suit for rehearing. The appellant (defendant) has now appealed against that order.

(2.) We think that the lower appellate Court's view on this matter is clearly wrong. The application to the District Munsif was to set aside the final decree only and this was clearly apprehended by the plaintiff also as is obvious from his counter in the I. A. The order itself, as quoted above, clearly gave what the petitioner in that I. A. asked for and no more. We must go by that order and not by what we think from the District Munsif's note that he intended the order to be. Even from the notes paper it would appear that the entry calling for written statement and draft issues was a mistake, as, on the adjourned date of hearing, it was a counter- statement and not a written statement that was put in and accepted by the same District Munsif and no draft issues were ever put in. The case was disposed of on that counter statement. It would take much stronger evidence to convince us that the District Munsif deliberately ordered a relief which he was not asked to give by either party. We are quite clear that only the final decree was set aside and the order of the lower appellate Court remanding the whole suit for trial cannot therefore be supported and must be set aside.

(3.) We are asked, however, not to accept the District Munsif's finding that the application for final decree was out of time. The preliminary decree was on 2nd September, 1912. On 17 March, 1913 an application for final decree was made and dismissed because the notice was not served. On 16 March, 1916 another application was filed, the fate of which is uncertain. On 23 March, 1917 a third application was filed, the one now in question. It was commonly believed at that time that applications for final decrees were to be treated as applications for execution and were subject to the Rules of Limitation governing these. Of late the Courts have laid down that an application for a final decree is a proceeding in a suit and not in execution, and therefore only one application is permissible and it must be put in within three years of the preliminary decree. Adopting this later view of the law, the District Munsif dismissed the application of 23 March, 1917 as out of time. The plaintiff contends that on the same view of the law the dismissal of his application of 17 March, 1913 on the ground that notice was not served was improper, because no notice was necessary on such an application, and therefore his application of 23 March, 1917, may fairly be treated as a continuation of the application improperly dismissed on 17 March, 1913. We need not refer further to this question, because we think that the respondent- plaintiff is bound to succeed on another ground and that is that the appellant- defendant's application to set aside the ex parte final decree was itself out of time.