GUNDAN ALIAS CHENROYAN Vs. KAMAKHA RAMA CHETTI

JUDGEMENT

(1.) The petitioner ought to have followed the course which the plaintiffs in the case reported as Chandramathi Ammal v. Narayannsami Iyer 5 Ind. Cas. 23 : 19 M.L.J. 760 : 7 M.L.T. 369 : 33 M. 241 followed under similar circumstances.

(2.) In that case, when the District Munsif dealt with the suit under Section 158, old Civil Procedure Code (corresponding to Order XVII, Rule 3, of the new Code), instead of under Section 157, the plaintiffs appealed against the decree passed by the Munsif and preferred a second appeal to the High Court and then the High Court set aside the decree which the Munsif, applying Section 158, Civil Procedure Code, had passed and themselves passed the order which the District Munsif ought to have passed, namely, the dismissal of the suit for default under Section 157 of the Civil Procedure Code, and then set aside that dismissal on the materials before them.

(3.) The petitioner ought, therefore, to have appealed against the Munsif s wrong decree purporting to have been passed on the merits under Order XVII, Rule 3, of the Civil Procedure Code, instead of treating the decree as an ex parte decree and appealing against the order refusing to set aside the ex parte decree.