KOMMINENI KOTIAH Vs. MUVVA NARASIMHAM

JUDGEMENT

(1.) The facts are briefly these. The petitioner put in a petition, under Order 9, Rule 13, Civil Procedure Code, praying that the ex parte decree passed against him, on 18 February, 1946, in O.S. No. 796 of 1945 on the file of the District Munsiff's Court, Guntur, be set aside and the suit restored to file. The learned District Munsiff passed an order dated 3 July, 1946, the material portion of which runs as follows: This Court doth order and decree that the ex parte decree passed on 18th February, 1946, against the petitioner be set aside on condition of petitioner depositing the costs of suit Rs. 128-4-0 on or before 2nd August, 1946, and also paying Rs. 10 as day costs to the respondent's (plaintiff s) vakil on or before that date and (2) that in default of the one or other of the two conditions, the petition stands dismissed automatically.

(2.) By 2nd August, 1946, the petitioner, admittedly, paid only Rs. 10, the day costs, to the respondent's vakil. He did not deposit the Rs. 128-4-0, the costs of suit. He put in a petition to allow him to furnish immoveable property as security for that amount. That petition was rejected. So, he filed an appeal against the order of the District Munsiff in the Court of the District Judge, Guntur, on 24 August, 1946. The learned District Judge rejected that appeal on the ground that the order of the learned District Munsiff dated 3 July, 1946, was the final order in the case and that the appeal had been filed 41 days after that date, excluding the time required for obtaining the copies of the decree and judgment and was thus barred by limitation. He rejected the contention of the petitioner's counsel that the order of the District Munsiff dated 3 July, 1946, was only a conditional order and not a final one. Hence this petition.

(3.) The learned Counsel for the petitioner urged that the learned District Judge had erred in law. He relied on the rulings in Venkatasami Naidu V/s. Shanmugham Pillai (1917) M.W.N. 815 and Rajagopalachari V/s. Thathachariar for the position that the order of the learned District Munsiff, dated 3 July, 1946, would be only a conditional order, and it became a final order, rejecting the petition for setting aside the ex parte decree, only on 2nd August, 1946, when the condition was not fulfilled, and that the petitioner had, therefore, 30 days time from 2nd August, 1946, to file the appeal, and that the lower Court went wrong in law in holding to the contrary. I am unable to agree. The learned Counsel for the respondent relied on the ruling in Ramayya V/s. Lakshmayya (1944) 1 M.L.J. 381 : I.L.R. 1945 Mad. 203 where the two rulings relied on by the learned Counsel for the petitioner have been considered and distinguished, and it has been definitely held that in the case of an all-comprehensive order, like the one passed by the District Munsiff on 3 July, 1946, where the petitioner had to do certain things, namely, to deposit costs, etc., into Court, to get the ex parte order set aside, with a direction that if he did not do so, the petition was to stand dismissed with costs, the order would be a final one and the appeal should be filed within thirty days. The Bench decision in Venkatasami Naidu V/s. Shanmugham Pillai (1917) M.W.N. 815 was distinguished on the ground that the exact terms of the order appealed against in that case, were not available, and, so, the Bench case was of little assistance, since the order in that case must have been presumably in terms which required a second order. The decision of Madhavan Nair, J., in Rajagopalachari v. Thathachariar was distinguished by the fact that in spite of the clause in the order appealed against that if he did not pay, the petition would stand dismissed with costs, the petition was posted for further hearing and consideration and dismissed on a later date, thus treating the original order as a conditional one and making the order of rejection on the later date the last and final order.