RAMAYYA Vs. LAKSHMAYYA

JUDGEMENT

(1.) In this appeal Mr. Satyanarayana Rao has raised a preliminary point that no appeal lies. The facts are as follows : The appellants were defendants 2 to 14 in three suits-O. S. Nos. 58, 82 and 83 of 1943. There is no appeal by defendant 1. Before suits, attachments before judgment of substantially all the debtors properties were effected. On 21 March 1943, the defendants vakil left hurriedly for Benares to be present with his son, who was stated to be sick with small-pox. On 22nd March, it is said that an oral request was made by defendant 3 for an adjournment. On 25 March, I.A. No. 528 of 1943 was filed-an application to adjourn the case to 5 April which was dismissed; and on that day, ex parte decrees were passed in the three suits. On 2 April, 1943, I.A. Nos. 568, 569 and 570 were filed praying to set aside the three ex parte decrees. On 5 July 1943, an order was passed and in the judgment, the learned Judge said: On the whole, I should think that the suits should be restored and sufficient costs should be awarded to the respondents as a panacea as was done by his Lordship in the ease quoted above, Venkateswara V/s. Subramaniam ( 39) 26 A.I.R. 1939 Mad. 974. I therefore order the petitioner to pay Rs. 100 for costs of the respondents irrespective of the result in the suits within 15 days from this date. They shall also deposit costs of the suits as a condition precedent before the trial of the suits which are hereby restored to file and posted peremptorily to 26 July 1943. In default, the petitions will stand dismissed with costs. The decretal order on that judgment was: It is ordered that the petition be and the same is hereby allowed. It is further ordered that the petitioners do deposit into Court a sum of Rs. 100 towards their costs in this petition and also in I.A. Nos. 569, 570 and 625 to 627 of 1943 irrespective of the result of the suits and do also deposit the costs decreed on or before 26 July 1943. It is further ordered that in default of payment the petitions do stand dismissed with costs." I.A. Nos. 625 to 627 of 1943 related to defendant 1 and we are not concerned with them in any way. There were certain further proceedings by the appellants with which we are not concerned. It is enough to say that they claim that they were quite unable to comply with the order of 5 July and had made attempts in the High Court to improve their position. An order for stay passed by the High Court reached the lower Court after the order of 26 July was passed. On 26 July, that is to say, some days after the expiration of 15 days from 5 July, and to which day the suits had been posted peremptorily by the learned Judge on 5 July 1943 the following order was passed: Defendants are called and they are absent. The plaintiffs are ready. The defendants have not deposited the amount ordered to be paid into Court by this date in I.A. Nos. 568 and 625 of 1943. As the direction given in the order on the said petitions is not obeyed, the order operates and the decrees passed already stand." Mr. Satyanarayana Rao has argued that this is not within Order 43, Rule 1 (d). The appeals before us, he contends, are not against orders under Rule 13 or Rule 15 of Order 9, rejecting an application for an order to set aside a decree or order passed ex parte. He contends that an order of 5 July 1943 so far from being an order rejecting an application is an order allowing the application and he contends that if the appellants desire to appeal at all, they should have appealed not against the order of 5 July, but against the order of 26 July, which was the order dismissing the application to set aside the ex parte decree. It has been contended by learned Counsel for the appellants that this argument is fallacious, that the order of 5 July, was complete in itself and that the order of 26 July was not an order in relation to these applications, and did nothing more than recall what had happened with regard to the order of 5 July viz., that it had worked itself out and that, therefore, the decrees in the suit automatically were restored to life. His words were "The decrees passed already stand." There is no doubt that if it appears that in these applications to set aside ex parte decrees an order implies that a further order is required to dispose of the applications, it is that last order, if it rejects the application, which should be attacked in appeal.

(2.) The cases seem to us to be entirely clear. There are two decisions of the Madras High Court and one decision of a Full Bench of the Bombay High Court on the topic. The earliest case is of no great assistance. It is Venkatasami v. Shanmugham ( 18) 5 A.I.R. 1918 Mad. 257. The precise terms of the order passed in the lower Court are unfortunately not set out; but the learned Judges Oldfield and Bakewell JJ. held that "the expression rejecting an application under Order 43, Rule 1 (d) signifies an immediate rejection and not a conditional or prospective rejection." They went on to lay down what they thought to be the appropriate procedure. In the absence of the exact terms of the order, that case is of little assistance. It must presumably have been in terms which required a second order. Madhavan Nair J. (as he then was) sitting alone in Rajagopalachari V/s. Narasimha had to deal with this position. In that case, the order was that the ex parte decree will be set 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." The learned Munsif noted that the petition was to be called for final disposal on 13 September 1923. The matter came before the Court again and an order was passed finally dismissing the application to set aside the ex parte decree. It is clear that the I. As. concerned in that case were treated as open and were expressly posted for further consideration; and it appears that when they were heard, there was some discussion as to the terms. Madhavan Nair J., rightly observes that all the parties as well as the Court treated the prior order as a conditional one. The last order was "money not put into Court. Application rejected." The learned Judge held that it was this last order which should be made the subject of an appeal.

(3.) The order, however, before us seems to be all comprehensive. What happened is this: The petitioners had to do certain things, viz., deposit costs into Court. If they did not do so, their petition was to stand dismissed with costs. I think that that order is exactly the type of order which is passed on the original side of the Bombay High Court and to which reference is made by the Chief Justice when delivering the judgment in the Full Bench decision of five Judges in Narayan v. Vaikunt , who dealt with this very subject. The learned Chief Justice says at p. 75: "My brothers Shah and Fawcett tell me that in the mofussil it is usual to make two orders: viz., (a) a preliminary conditional order like that of 30 May, and (b) a final order like that of 18 July. That indeed is the practice pointed out in Jagarnath V/s. Kamta Prasad ( 14) 1 A.I.R. 1914 All. 55 at p. 79. On the original side the usual order provides that if the applicant does not comply with the conditions therein stated, then his application is to be dismissed, and the original ex parte decree to stand. In other words, on the original side we usually have one order and not two as is the case here. But whichever course is adopted, in my opinion, it makes no difference in principle." On 30 May 1925, the first order in that case was: "Suit to be restored to file on the applicants or any of them furnishing adequate security for Rs. 3000 only within one month. Applicants to bear costs of this application," and then followed on 18 July the following order : "As security is not furnished in spite of ample opportunity given, the application fails and suit cannot be restored to file. Application is rejected with costs." The learned Judges held that an appeal lay against the second order. It seems to us that, as already indicated, that the form of the order in this is what the learned Chief Justice described as the "single order." When 15 days had expired and the appellants had not complied with the terms imposed, automatically their petition was dismissed with costs and automatically the suits were restored to the file and were ready for hearing by the trial Judge.