BALARAMA REDDI Vs. SUBBARAMA REDDI
HIGH COURT OF MADRAS
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(1.) THESE two petitions raise an interesting point of limitation law for determination in connection with orders passed under Order 9, Rule 13, Civil P. C.
(2.) THE petitioner was a defendant in two suits. The first was by his wife's brother O.S. No. 319 of 1947 for recovery of mesne profits. This was decreed 'ex parte' on 9 -1 -1948. He filed an application to set the decree aside on 23 -1 -1948. On this an order was passed on 19 -1 -1949 directing the decree to be set aside on certain conditions; that Rs. 25 was to be paid by 7 -2 -1949 and in default the application was to be dismissed. The petition was called on 8 -2 -1949 and the Court passed a further order 'Costs not paid. Dismissed.' The petitioner appealed against this order to the District Judge, who on payment of Rs. 41 by the petitioner to the respondent directed the 'ex parte' decree to be set aside. In C.R.P. No. 1843 of 1949 filed by the plaintiff in that suit against that order, Balakrishna Aiyar J. set aside the order of the District Judge observing that there was no finding that the appellant was prevented by sufficient cause from appearing in the trial Court on the relevant date, and inter alia directing a Question of limitation) viz., that the appeal to the District Judge was time barred to be heard and disposed of. The learned District Judge dismissed the appeal with costs on the sole ground that the appeal was time barred as the order to be appealed against was the first order dated 19 -1 -1949 and not the formal order of dismissal on 8 -2 -1949. If the latter date is taken into consideration, the appeal would be in time.'
The same point has arisen in another suit, O.S. No. 139 of 1950 filed by the plaintiff's wife for maintenance in which she claimed Rs. 30 a month. This was decreed 'ex parte' on 26 -7 -1950. The application to set aside this decree was filed on 21 -8 -1950, and a conditional order passed on 25 -10 -1950 allowing it to be set aside on petitioner paying Rs. 35 costs and depositing Rs. 150 by 1 -12 -1950, with a direction that in default his application was to be dismissed. This application was called on 1 -12 -1950 when the Court passed the following order : 'Costs alone tendered, but refused. The petitioner wants time to pay Rs. 150. The order works itself out. The petition is therefore dismissed.'
(3.) PETITIONER 's appeal to the District Court, C.M.A. No. 4 of 1951 was heard on the same date as his previous appeal C.M.A. No. 20 of 1949 and similarly dismissed as being time barred in a separate judgment.;
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