Decided on June 21,1978



- (1.) This is an application of the defendant No. 1 challenging the order dated 2-3-1977 made by the learned trial Judge rejecting her application under O. 9, R. 7 of the Civil P. C.
(2.) Money Suit No. 6 of 1976 was instituted on 20th March, 1976, for recovery of a sum of Rs. 2,500 along with interest on the footing that the defendant No. 1 had undertaken to pay the said amount representing 50% of the consideration of a registered sale-deed. Several adjournments were taken by the defendant to file written statement and the Court had given extension till 1st of Feb., 1977, peremptorily for the purpose. An application for further time to file written statement was rejected on 1st of Feb., 1977 and the suit was posted to 8-2-1977. On that date, defendant having not taken steps she was set ex parte and the suit was posted to 17-2-1977 for ex parte hearing. On this adjourned date, an application under O. 9, R. 7 of the Civil P. C. was filed which the learned Trial Judge has rejected on 2nd March, 1977. Before the Civil Revision was filed in this Court, the suit was decreed ex parte on 13-5-1977.
(3.) An objection regarding maintainability of this revision has been raised by Mr. Murty on the footing that the suit itself having already been disposed of, the revision challenging an interlocutory order dated 2nd March, 1977, is not maintainable. Reliance is placed on the decision of the Mysore High Court in the case of T. C. Malleshappa v. Firm of Sha Veer Chand Pratapmal, AIR 1965 Mys 300. According to Mr. Murty the facts of the reported decision are almost similar to the facts of the present case and the decision supports his stand. On the other hand, Mr. Mohanty for the petitioner relying upon the ratio of the Supreme Court decision in the case of Shiromani Gurdwara Prabandhak Committee. Amritsar v. Raja Shiv Rattan Dev Singh. AIR 1955 SC 576 and a couple of Bench decisions of this Court contends that if the impugned order is vacated on some tenable ground, the subsequent proceedings based upon the impugned order are bound to stand vacated and they cannot stand in the way of petitioner challenging the impugned order.;

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