MUTHAPPA CHETTY Vs. RAMAN CHETTY

JUDGEMENT

(1.) The defendant is the appellant in this appeal and he is the petitioner in the revision petition which has been filed in the case. The facts are these: the plaintiff brought a suit on a promissory note executed by the defendant at Meiktila in Burma in 1923. The suit was brought in the Court of the District Munsif of Sivaganga alleging that the defendant was a permanent resident at a village called Kilaseval-patti in the Eamnad District. The learned District Munsif held that the defendant had no residence there and that therefore "he had no jurisdiction and returned the plaint. An appeal was presented to the Subordinate Judge of Sivaganga who reversed the decision of the District Munsif and remanded the suit for disposal on the other issues. At the trial the defendant was absent and the suit was decreed ex parte in favouJj of the plaintiff. An application under Order 9, Rull 13, to set aside the ex parte decree was dismissed and this was confirmed on appeal. Against this C.R.P. No. 1808 of 1929 has been filed.

(2.) The first question is whether the appeal is competent. The plaint was returned by the District Munsif under Order 7, Rull 10 and against such a return an appeal is provided under Order 43, Rull 1(a). Section 104(2) states that "no appeal shall lie from any order passed in appeal under this section" and amongst orders that can be passed under this section is one under Section 104(l), namely any order made under rules from which an appeal is expressly allowed by rules. Looking to these rules, it would clearly appear that under Section 104(2) a second appeal is incompetent; but it is argued that Order 43, Rule 1(u), provides for an appeal against an order under Rull 23, Order 41, remanding a case where an appeal would lie from the decree of the appellate Court. There is no reported decision of this Court on the matter but the precise question arose in Nanbat Singh V/s. Baldeo Singh (1911) 33 All 479, where the same arguments were used and it was held that no appeal lay. The same is the view of the Bombay High Court Vide Nilkanth V/s. Seetharamachandra Rao 1915 Mad 1223. Under the present Procedure Code an adjudication of an appellate Court in a matter of this Court is not a decree as it was under the old Code. It may be pointed out that f the words in Order 43, Rule 1(u) are "the I decree." If the order of the Court of e first instance is not a decree (as it is a not in this case, for it is not a rejection of a plaint which falls under Order 6, Rull 11) then the adjudication of the appellate Court is not a decree. This is quite clear from Section 2 (2)(a), Civil P. C. However the question remains whether a this can be converted into a Civil Revision Petition : Atchayya V/s. Seetharamachandra Rao 1915 Mad 1223 is authority that it can. I proceed therefore to deal with it as a Civil Revision it Petition.

(3.) I do not propose to discuss the difficult question as to whether the defendant can be held to have had either a, 1 permanent or temporary residence in fe Kilasevalpatti within the meaning of Section 20 Expl. 1 Civil P.C. A number 3 of cases have been quoted on each side - But under Section 21 an appellate or revisiona1 Court cannot interfere in such a matter unless there has been a consequent failure of justice. This was a suit on a promissory note. Execution of the pro-note is admitted, but the defendant stated that if accounts be taken between the defendant and the plaintiff-it was the latter who owed him and not he to the plaintiff. The onus was therefore upon the defendant in the case to prove the same. In Hari Singh V/s. Harnam Singh 1930 Lah 1016 a similar-case, the defendant remained ex parte and the onus was upon him to prove the issue. It was held that the objection as to the place of "suing could not be raised in the appellate Court Kanshi Ram Roshan Lal V/s. Mohkam Chand Chela Ram 1934 Lah 233, although it was held that as a matter of fact that the trying Court had no jurisdiction, yet the High Court refused to interfere on the ground that it had not been shown that there was any failure of justice under 8 91 Gajendra Singh V/s. Kaur Sunder 1934 All 549 was also a case when it was held that the Court had no jurisdiction, but as there had been no consequent failure of justice interference was refused. The order of remand by the Sub-Court to the District Munsif of the present case was passed on 17 March 1928. It was posted for hearing on 16 April 1928. On 2 April, 1928 the defendant made an application to stay the proceedings on the ground that he wished to prefer an appeal to the High Court against the order of remand. On 10 April 1928, he made an application to examine 13 witnesses on commission in Bmma. The application for stay was refused and in his judgment in the case the learned District Munsif said that the application to examine 13 witnesses was made with the idea of delaying the trial of the suit as the petitioner could have taken steps to summon the witnesses in time. As remarked above, the defendant on whom the onus lay was absent on the date of hearing. Both the learned District Munsif and the Subordinate Judge who refused to set aside the ex parte decree have agreed that the defendant had no satisfactory reason for absenting himself and here it has not been shown that the order was passed under any misappreciation of the evidence nor have any of the facts on which this appellate order was passed been disputed.