NARAYANASAMI REDDI Vs. OSURU REDDI
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(1.) This suit was tried by the District Munsif as a small cause suit and judgment was given for the plaintiff. On an application to this Court to reverse the District Munsif's decree, Subrahmania Ayyar, J., was of opinion that the decree should be set aside and the suit remanded for disposal according to law after further evidence had been taken. Boddam, J., was of opinion that the case was not one in which this Court ought to interfere by way of revision upon the ground that the defence set up by the defendant in this Court had not been raised in the Court of First Instance and that the petition ought to be dismissed.
(2.) The defendant appealed under Art. 15 of the Letters Patent. A preliminary objection was taken by the plaintiff to the hearing of the appeal that there bad been no judgment within the meaning of Art. 15. We are of opinion that the adjudication by Subrahmania Ayyar and Boddam, J.T., is a judgment within the meaning of the article and we overrule the preliminary objection.
(3.) The first point taken on behalf of the appellant (the defendant) was that the case was governed by Art. 36 of the Letters Patent and not by Secs.575 and 647 of the Code of Civil Procedure, and that the opinion of the senior Judge, that the decree of the Munsif ought to be set aside, should prevail. In our judgment the case is governed by Section 575 of the Civil P. C.. In the case relied on by the appellant Husaini Begam V/s. The Collector of Muzaffarnagar I.L.R. 11 All. 176 at P.178) the Allahabad Court held that the Letters Patent and not the Code applied upon the ground that there had been no hearing of the appeal within the meaning of Section 575 inasmuch as the point upon which the Judges had differed in opinion was a point taken by way of preliminary objection that the appeal was time barred. In the case before us there was a hearing of the petition by a bench of two Judges who differed in opinion as to the way in which the petition should be disposed of The fact that Boddam, J., was of opinion that this Court ought not to interfere by way of revision for the reason that the case put forward by the petitioner had not been set up in the Court of First Instance is no ground for saying that there has been no hearing of the petition.;
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