NEELAM SURYANARAYANAMURTI NAIDU (MINOR) Vs. BOGGAVARAPU SATYANARAYANAMURTI

JUDGEMENT

(1.) These connected appeals arise out 01 an application made by the respondent-creditior under Section 19-A of the Madras Agriculturists Relief Act. He alleged that the debtors, who are five in number, were not agriculturists entitled to the benefits of the Act; but prayed that if for any reason they were found to be agriculturists within the meaning of the Act, the Court should ascertain the sum properly payable under the mortgage executed in his favour.. In support of his case that the debtors were not agriculturists, he filed certain certificates (Exs. P- 3 to P-7) granted by the Commissioner, Coconada Municipality, which, he claimed, showed that the respondents who were said to be undivided were assessed during 1935-193 7 to house and land tax in respect of properties whose annual rental value exceeded Rs. 600 so as to bring them within the mischief of proviso (C) to Section 3 (ii) of the Act. The debtors pleaded that they were divided and that if their individual shares in the properties were alone taken into account as they should be, the proportion of the annual rental value attributable to each of such shares would be well below the statutory limit of Rs. 600.

(2.) The petition was adjourned from time to time and was posted finally to 3 July 1944. On that day it would appear that two of the debtors, respondents 1 and 2 in the lower Court, who appeared by a separate pleader were ready; but neither respondents 4 to 6 or their vakil appeared and the hearing was adjourned till 2 p.m. on that day to enable them to appear. Finding, however, that none of the respondents or vakils appeared when the case was called the learned Judge set all the respondents ex parte and pronounced judgment holding, on the strength of the certificates filed by the creditor, that the debtors were not agriculturists entitled to the benefits of the Act and that the creditor was entitled to the amount due under the mortgage bond. From this order the debtors have preferred C.M.A. No. 690 of 1944. On the next day the debtors applied by separate petitions for setting aside the ex parte order and rehearing the original petition; The learned Judge dismissed theses petitions holding that the grounds put forward for the non-appearance of the debtors and their pleaders were unconvincing and that their laches could not be condoned. Against these orders C.M.A. No. 691 of 1944 and 221 of 1945 have been preferred:

(3.) Mr. Somasundaram appearing for the respondent-creditor has raised a preliminary objection that all these appeals are incompetent and should be dismissed as such. The learned Counsel has argued that the order of the Court below on the main petition should be regarded as an order made under Section 19-A (4)(b) of the Act and as such is not appealable under the provisions of Section 25-A, as Sub-section (i) of Clause (c) of that section provides for an appeal only from orders made under cluse (a) of Sub-section (4) of Section 19-A. As regards the other two appeals, Mr. Somasundaram has urged that they are also not maintainable, as, although Section 19-A (8) may make the provisions of Order 9, Rule 13 of the Civil Procedure Code applicable to proceedings under the Act, it cannot also attract the right of appeal conferred under order 43 Rule 1 (d) of the Civil Procedure Code. We are of opinion that both the preliminary objections are well founded and must prevail.