GADDE TIRUPATHAIAH Vs. AMBADIPUDI SUNDARA RAMAIAH
LAWS(APH)-1992-1-21
HIGH COURT OF ANDHRA PRADESH
Decided on January 23,1992

CADDE TIRUPATHAIAH Appellant
VERSUS
AMBADIPUDI SUNDARA RAMAIAH Respondents


Cited Judgements :-

GOPAL and CO VS. K BALARAJAIAH SIDDIRAMULU [LAWS(APH)-1994-1-20] [REFERRED TO]


JUDGEMENT

- (1.)The sole defendant in O.S.No.1943/81 on the file of the Court of the Principal Munsif Magistrate, Guntur is the petitioner herein. An exparte decree was passed on 24-6-82. There upon he filed I.A.No.4951 /86 for setting aside the exparte decree passed against him. The learned Munsif Magistrate allowed that LA. Challenging that decision of the learned Munsif Magistrate, the plaintiff preferred C.M.A.No.22/88 in District Court, Guntur. The learned II Additional District Judge Guntur by order dt.30-12-88 has allowed the said C.M.A. Aggrieved by the said decision the defendant preferred this revision.
(2.)The short point urged by the learned counsel for the petitioner is that the appeal preferred by the respondent herein (plaintiff) itself is incompetent. In support of his contention, he relied upon Order 43, Rule 1 sub-clause (d) of CPC which provides for an appeal only against an order passed under Order 9, Rule 13 CPC rejecting an application for an order to set aside a decree passed exparte. In the light of that specific provision providing for an appeal against an order passed under Order 9, Rule 13 CPC rejecting an application and thereby refusing to set aside the exparte decree, but not allowing an application filed under Or.9, Rule 13 CPC and thereby setting aside the exparte decree, I agree with the submission made by the learned counsel for the petitioner that C.M.A. 22/88 preferred by the plaintiff before the learned II-Additional District Judge, Guntur is not maintainable and as such he has no jurisdiction to entertain the appeal and to set aside the order in I.A.No.4951/86.
(3.)The order of the learned II-Additional District Judge in C.M.A. No.22/88 is therefore without jurisdiction and is liable to be set aside. The Civil Revision Petition is accordingly allowed and the order of the learned II-Additional District Judge, Guntur in C.M.A. No.22/88 is set aside. No costs.
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