PAMIREDDI SAMBAYYA Vs. NIMMAGADDA NAGAYYA

JUDGEMENT

(1.) The circumstances of the case out of which these petitions arise are somewhat extraordinary, and as the course we propose to take is one which we should be sorry to see misquoted as a precedent, I deem it best to set them out in detail. The appellants in Appeal against Order No. 228 of 1917 and petitioners in Civil Revision Petition No. 553 of 19J7 (whom we shall henceforward refer to as appellants) were appellants in Appeal Suit No. 11 of 1903 on the file of the Subordinate Judge of Masulipatam. They succeeded, the decree of the Original Court being reversed. The Other side preferred a second appeal to this Court (Second Appeal No. 1983 of 1913). This Court set aside the decree of the Sub-Court and remanded the appeal to the Subordinate Judge of Masulipatam for disposal according to law. This was on 5th January 1916. Meantime certain changes had taken place in the Courts of the Kistna District. The Sub-Court of Masulipatam, which had disposed of this appeal, was directed to hold its sittings at Bezwada and its designation altered to the Sub Court of Bezwada. A new Court has been constituted under the title of the Temporary Sub-Court of Masulipatam and was working at Masulipatam when the order of this Court in second appeal was passed.

(2.) It is beyond dispute that the effect of this Court s order was to direct restoration of the appeal to the file of the Court sitting at Bezwada which was identical with the Court which originally heard it, although its designation and place of sitting had been altered. The parties, however, fell into the not unnatural error of thinking that the appeal would be beard by the Court of Masulipatam. As far as appellants are concerned, this error is testified to in the affidavits filed which have been accepted by the lower Appellate Court, and which we accept as true in this respect. How natural the error was may be gauged by the fact that it was shared by the office of this Court which sent the records in the first instance to the Temporary Sub-Court of Masulipatam. The latter Court transmitted them to the Bezwada Court.

(3.) The Bezwada Court, on receipt of the records, posted the appeal for hearing on 6th March 1916. No notice was sent to the parties, but under Rule 16, Civil Rules of Practice, notice of the hearing was affixed on the Court Notice Board. On the 6th March 1916 neither party appeared. The Court took time till 14th March 1916: and then dismissed the appeal for default of appellants appearance under Order XLI, Rule 17 (1).