V THIAGARAJAN Vs. MOHAMMED UMAR SAIT
LAWS(MAD)-1977-4-24
HIGH COURT OF MADRAS
Decided on April 28,1977

V.THIAGARAJAN Appellant
VERSUS
MOHAMMED UMAR SAIT Respondents

JUDGEMENT

- (1.) ON 14-11-1969, the respondent in the revision petition executed a promissory note in favour of the revision petitioner herein for a sum of Rs. 10,000. On the foot of the promissory note, O. S. No. 7311 of 1970 came to be filed under Order 37 C. P. C. on 23-12-1970. The respondents herein filed I. A. 9065 of 1971 seeking leave to defend. It was his case that no consideration had passed. The court by an order dated 11-2-1972 granted conditional leave directing the respondent to deposit a sum of Rupees 6,000 on or before 29-21972 failing which the said petition would stand dismissed and the suit was directed to be called on 1-3-1972. The deposit was not made in accordance with this order, therefore the suit was taken up on 1-3-1972. At that time, the counsel for the respondent was stated to be present and it was decreed. In the meanwhile what had happened is against the grant of conditional leave in I. A. 9065 of 1971, the matter was taken up to this court in C. R. p. 509 of 1972 and that was dismissed in limine. However, time was extended to deposit the sum of Rupees 6,000 by one week from 1-3-1972. On 6-3-1972, the deposit was made. It has to be presumed under these circumstances, that the decree dated 1-3-1972, was passed without being aware of the order by this court, which was communicated only on 2-3-1972. Having regard to these important facts, no objection could be taken to the decree as such. Nevertheless, on 31-7-1974, i. A. 14962 of 1974 was filed by the respondent herein under Order 37, Rule 4 c. P. C. to set aside the decree. By an order dated 24-9-1974 the said application was dismissed. On 26-9-1974, I. A. No. 22623 of 1074 was filed, purporting to be under Section 44 of the Evidence Act alleging that the decree in o. S. No. 7311 of 1970 passed on 1-3-1973 came to be obtained by fraud, since on inspection of the said promissory note, the respondent came to know that the promissory note was originally insufficiently stamped and later on another stamp was affixed and it was crossed so as to make it a valid promissory note. The learned City Civil Judge, Madras passed an order setting aside that decree on payment of costs Rs. 50 on or before 10-4-1975 and directed the suit to be called on 11-4-1975. Aggrieved by this order, the present civil revision petition has come to be filed.
(2.) MR. M. R. Narayanaswami, learned counsel for the petitioner contends as under-Firstly, Section 44 of the Evidence Act does not confer any substantive right on the parties. It is a matter relating to the procedure. Therefore, the application under revision itself is misconceived. Secondly, assuming that the application is maintainable, under section 44 of the Evidence Act, the court which passed the order under revision was oblivious to the important fact that I. A. 14962 of 1974 was dismissed as early as 24-9-1974, thereby the finality had reached concerning the decree in O. S. 7311 of 1970 and thereafter, the court has no jurisdiction to reopen the matter and lastly it is submitted that it is not correct on the part of the court to hold that the decree dated 1-3-1972 is an ex parte decree.
(3.) MR. M. N. Krishnamani, learned counsel for the respondent would urge in meeting the contentions that the decree dated 1-3-1972 was passed by the City civil Court in ignorance of the order of this court whereby the time was extended on 1-3-1972 by one week to deposit Rs. 6,000. in compliance of that order, a sum of Rs. 6,000 had been deposited and, therefore, the decree itself cannot be said to be valid. Only on inspection of the suit promissory note, the affixture of the additional stamp came to be noticed and, therefore, the defendant (respondent herein) was well justified in invoking Section 44 of the evidence Act and no exception could be taken to the order under revision.;


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