GUPTESWAR CHANDRA DEO Vs. TVVNARSIMHAM

JUDGEMENT

(1.) THE petitioner filed an application under Order 21, Rule 100, Civil P. C. This was dismissed for default on 7 March 1942. He then filed an application under Order 9, Rule 9 of the Code. That application also has been dismissed by the Court below by an order dated 22 June, 1942. THE Court below in dismissing the application has, evidently, been influenced to a great extent by a Full Bench decision of the Madras High Court in Alaga-sundaram Pillai V/s. Pichunier A.I.R. 1929 Mad. 757. But a Division Bench decision of Ms Court in Sheonandan V/s. Debi Lal A.I.R. 1923 pat. 239 lays down that a petition under Order. 9, Rule 9 does lie against orders dismissing petitions under Order 21, Rule 100. This view has not been overruled by this High Court, and the lower Court was bound by it in preference to a decision of another High Court, according to the practice indicated by another Division Bench of this Court in Lala Mistry V/s. Ganesh Mistry A.I.R. 1938 Pat. 120. THE learned advocate for the opposite party argues that the Court below has disposed of the case not only on a point of law but also on the merits. Looking at the order of the learned Subordinate Judge, it is clear that he was so much influenced by the fact that the petition was not maintainable that he had dealt with the materials before him in a very unsatisfactory manner. He has also remarked that there was a remedy open to the petitioner by way of suit, but ultimately he held that the application was not maintainable. I am afraid, the Court below has acted with material irregularity, and the case must be remanded for disposal in accordance with law. I would allow the application, set aside the order of the Court below and direct that the petition under Order 9, Rule 9 be disposed of in accordance with law. THEre will be no order as to costs. Imam, J.

(2.) I agree.