RENGASAMI THEVAR Vs. RAMANATHAN

JUDGEMENT

(1.) This appeal purports to be one from the order of the Subordinate Judge of Tanjore dated 26 July 1933 in A.S. 56 of 1933, on appeal from the order of the District Munsif of Pattukottai of 3 February 1932 allowing an application made under Order 22, Rule 10, Civil P.C., by the petitioner in I.A. No. 398 of 1931 to be substituted in the place of the plaintiff decree-holder in O.S. 24 of 1927. There was also another application by him for tpassing a final decree, Both these applications were allowed by the District Munsif in spite of the objection made by the judgment-debtor, defendant 1, who pleaded that the preliminary decree in the suit had been settled out of Court ,and fully satisfied by payment of JRs. 2,000 obtained by the sale of certain properties belonging to defendant 1 to -.the petitioner who had been directed to -pay the same to the plaintiff decree-holder in the suit. This order was passed by the District Munsif without staking any evidence, apparently on the preliminary ground that even if the : alleged settlement or adjustment was true it cannot be taken notice of by the Court because the payment was one made outside the Court.

(2.) On appeal the Subordinate Judge held that in the matter of allowing applications under Order 21, Rule 10, the Court has a discretion, and, in the exercise of that discretion, would be justified in refusing to allow such an application if fraud is alleged and proved against the person applying under that provision of law, and the learned Subordinate Judge reversed the order of the lower Court on both the applications and remanded the same to the lower Court for fresh disposal after recording evidence and in the light of the observations made by him. The Subordinate Judge's statement of the law that the Court has a discretion in the matter is not disputed before me; nor is it contended that if fraud is established on the part of a person who is seeking the aid of the Court to come on record it would not be proper to refuse such aid to a man who comes to Court without clean hands. The question therefore in this appeal resolves itself into this, viz., whether the Subordinate Judge was wrong in giving an opportunity to both parties to adduce evidence regarding the allegations made in the counter affidavit of the judgment-debtor, defendant 1.

(3.) Before dealing with this point which is the only questiion on the merits that arises in this appeal I have to refer though briefly to the preliminary objection to this second appeal, namely, that no second appeal lies from an appellate order on an application made under Order 22, Rule 10, Civil P.C. Prima facie, it would appear that no second appeal lies, but there is a revision petition filed which raises the same question, and whether a second appeal lies or not, the question has to be decided whether the order of remand made by the Subordinate Judge is wrong and requires to be set aside. I am of opinion that in the circumstances the order passed by the Subordinate Judge was perfectly proper. The appellant in. this Court is admittedly in possession of the properties that ware sold to him by defendant 1, and there can be no doubt that the moneys that were to be paid as consideration for the sale deeds were actually paid to the plaintiff decree-holder to satisfy his claim.