Decided on December 17,1954



Rao, C.J. - (1.) Rajagopala Iyengal, J. of the Madras High Court placed the papers in the above matter before the Chief Justice of that Court for constituting a Full Bench as the learner Judge felt that there was a conflict between the two Full Bench decisions in -- Kayambu Pillai, In re, AIR 1941 Mad 836 (FB) (A) and -- Satyanarayanacharyulu v. Ramalingam, AIr 1952 Mad 86 (FB) (B). After the constitution of the Andhra High Court, the case was transferred to this Court and the Full Bench was accordingly constituted.
(2.) The petitioner filed a suit in the Court of the Subordinate Judges, Tenali, in forma pauperis for recovery of possession of the plaint schedule properties and for mesne profits. The suit was valued at Rs.9443-12-0 for purposes of court-fee and jurisdiction, and a court-fee of Rs.632-7-0 was payable thereon. At first, an application for leave to sue in forma pauperis was granted and the suit was numbered as O. S. No. 40 of 1951. Subsequently, he was dispaupered, as it was discovered that he had sufficient means to pay court-fee. On 7-12-1952, the Subordinate Judge directed him to pay the court-fee payable on the plaint. As the petitioner did not pay the court-fee within, the time given he dismissed the suit with costs. The petitioner filed the Civil Revision, Petition against the decision of the Subordiante Judge. The question is whether, in the circumstances, an appeal would lie against the order of the Subordinate Judge. If an appeal would life, the revision filed would obviously be not maintainable.
(3.) At this stage, the scope of the two Full Bench decisions may conveniently be considered. The facts in, -- In Re: Kayambu Pillai (A) are: the petitioner there filed an appeal in forma paupris. Subsequently, he was dispaupered and the Court directed him to pay the appropriate court-fee on the Memorandum of appeal and also to furnish security for the costs of the respondent within a prescribed time. On failure to comply with the order of the Court, the appeal was dismissed. When an appeal was filed against that order, the Full Bench held that an order dismissing an appeal for non-compliance with an order requiring security for costs is not a decree within the meaning of the word as defined a S.2(2), Civil P. C. The learned Judges further held that an order dismissing an appeal for non-payment of the required court-fee is an order dismissing an appeal for default and is also not a decree within the meaning of the definitiion in S. 2(2) of the Code. Leach C. J., gave two reasons for holding that the order in that case did not come under the definitionof decree. At p. 837 the learned Chief Justice stated as follows: "It (decree) does not include two kinds of orders, namely (i) an adjudication from which an appeal lies as an appeal from an order, and (ii) an order of dismissal for default. What was the order of 4-3-1938, but an order dismissing the appeal for default? The appeal had been admitted in forma pauperis, but on it becoming apparent that the appellant was not a pauper, the Court in effect said "you shall not proceed unless you pay the proper court-fee as you are no longer a pauer". The appellant failed to pay, and, therefore, entitled the Court to dismiss the appeal for default in payment".The other learned Judge, Venkataramana Rao J. states to the same effect at p. 838 as follows: "The next question is whether the Order in so far as it purports to be an order of dismissal for non-compliance in regard to payment of the court-fee is a decree. I agree with my Lord that it is an order of dismissal for default within the meaning of S. 2(2), Civil P. C., and, therefore, is not a decree. The Order, though it purports to be one for non-compliance with an order for payment of the court-fee, is strictly an order for non-compliance with an order passed in consequence of an order of dispaupering made under O. 33, R. 9. The word default in s. 2(2) (b), Civil P. C., in my opinionm need not be confined only to default of appearance, but may include other defaults as well and certainly this default.";

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