B NEMICHAND SOWCAR Vs. YVRAO

JUDGEMENT

(1.) This appeal arises out of a petition under Secs.13, 47 and 151 of the Civil Procedure Code in Suit No. 15 of 1939-40, Sub-Court, Kolar. That suit was decreed in circumstances which disregard the provisions of Section 13(b), Civil Procedure Code, in that the decree was not given on the merits of the case.

(2.) It is unnecessary to go into the background of the disputes between the parties. It is enough to say that the appellant and the respondent were interested one way or another, in certain cinema machinery and accessories. After disputes had arisen as to the ownership of these goods, it appears that the respondent took them into the State of Mysore, where, according to him, the goods passed into the possession or ownership of another person, one Kanduri Lakshmayya. The appellant there filed a suit against the respondent and K. Lakshmayya. There can be no doubt that the respondent submitted to the jurisdiction of the Kolar Court. His written statement and other documents said in effect that he was no longer in possession of the goods and that they were in the possession of the second defendant. The second defendant in his turn said that some, at any rate, of the goods remained in the possession of the first defendant.

(3.) On the day fixed for the hearing of the case, the respondent (first defendant), was not present and I am told that his advocate reported "no instructions." The Subordinate Judge without hearing any evidence passed an order, Ex. P-4. This order purports to show that there was appearance by counsel on behalf of the plaintiff and of the second defendant only. It states that the plaintiff's advocate represented that the plaintiff had given up his claim to certain items. Then it goes on to say, Thereafter both sides say that there may be a decree against only the first defendant as prayed for in the plaint for all the articles described in the inventory prepared by the commissioner except those given up by plaintiff to-day.... The suit is decreed as prayed for only against first defendant for all the articles described in the Commissioner's inventory except those given up by plaintiff to day. The first defendant was then made liable for costs which amounted to Rs. 476-6-0.