Kaki Venkatappa vs Toppal Timmappa

Panchapakesa Ayyar, J.—This is a petition to revise the order of the District Munsiff, Bellary, dated 3-11-1949, in LA. No. 781 of 1949 in

O.S. No. 347 of 1949, granting the petitioner leave to defend in a suit on a promissory note, only on condition of his furnishing security of

immovable property for Rs. 2,000 even though the learned District Munsiff had, in the course of the very same order, observed that he was

convinced that the defendant had a ''prima facie'' case to contest the suit. The defendant (petitioner) had admittedly alienated some of his

properties shortly before the suit. I have perused the entire records and heard the learned counsel on both sides.

Mr. K. Srinivasa Rao, for the petitioner, urged that the lower Court should have given unconditional leave to defend, in view of its own findings

that the defendant had a ''prima facie'' case to contest the suit, and that, under the rulings in Periya Miyan v. Subramania Iyer'', 46 L Jour 255

''Sundaram Chettiar v. Valliammal'', 68 Mad 116 and ''Kesavan v. South Indian Bank Limited'', 1949 2 Mad L Jour 70 the Court has no

discretion to refuse unconditional leave to defend in a case where it comes to the conclusion that there is a triable issue in the case, as the lower

Court did. Mr. Ranganatha Rao, for the plaintiff respondent, urged that two of the Bench rulings relied on by the learned counsel for the petitioner,

namely, ''Sundaram Chettiar v. Vaillammal'', 58 Mad 116 and ''Kesavan v. South India Bank Limited'', 1949 2 Mad L Jour 70 relate to leave on

the original side, where the rules regarding this matter are quite different and unconnected with the rules in the Civil Procedure Code. A Bench of

this Court, to which I was a party, has also held recently that the rules of the Original Side are independent rules having nothing to do with the rules

in the Civil Procedure Code. But the ruling in ''Periya Miyan Marakayar v. Subramania Iyer'', 46 M.L.J. 255 relates to Order 37 , CPC and not to

the rules of the original side. To this Mr. Ranganatha Rao''s answer is that there is a ruling by Varadachariar J., in ''Thyagaraja Mudall v.

Vedathunni, 70 M.L.J. 241 where the learned Judge discusses the ruling in ''Periaya Miyan Marakayar v. Subramania Iyer'', 46 M.L.J. 255

carefully, and comes to the conclusion that even under that ruling the discretion of a Court to order the furnishing of security before giving leave to

defend would be regulated by various circumstances in the particular case, and that the order of a Court passed in the exercise of that discretion

should only be interfered with by the High Court if the discretion is proved to have been arbitrarily or perversely exercised, and that even if a Court

had considered that there was ""a plausible defence"" it might still grant leave, in the circumstances, only on condition of furnishing security, and that,

by itself, would not amount to any arbitrary or perverse exercise of the discretion. Of course, the decision of Varadachariar J., is only by a single

Judge, as against the decision of the Bench in ''Periya Miyan Marayakar v. Subramania Iyer'', 46 M.L.J. 255 relied on by, Mr. Srinivasa Rao as

contended by him. Still, the fact remains that the Bench decision was fully considered by that very eminent Judge and that he came to the above

conclusion, which is one to which in my opinion, any Judge will come to on grounds of justice and equity. In his case, the petitioner had also

alienated some of his properties, unlike in the case in ''Periya Miyan Marakayar v. Subramania Iyer"" 46 M.L. J. 255. I am satisfied that, where the

learned District Munsiff observed, that he was convinced that the defendant (petitioner) had a ''prima facie'' case to contest the suit, he meant only

that he had a ""plausible case"", the phrase used by Varadachariar J., in Thyagaraja Mudaliar v. Vedathuni.'' 70 M.L.J. 241 and not that he had a

good case, much less a foolproof case. A reading of the petitioner''s defence will also show that that is all he had Just a plausible case and nothing

more. Besides, the case has now gone many stages further from the stage when leave to defend unconditionally was refused by the lower Court.

The petitioner failed to furnish the security ordered, and an ex parte decree was passed against him on 11-11-1949. This petition has only been

filed by him in this Court on 31-1-1950 when his petition for unconditional leave had been washed out for all practical purposes and when the real

substantial remedy of the petitioner, if he really had a good case, was to apply under Order 37 , Rule 4. CPC (no such provision exists in the

Original Side Rules) which provides for setting aside decrees already passed. Of course, merely as a matter of law, I cannot say that the petitioner

has no right to file a petition like this. It is well-known that even a final decree has been passed in pursuance of a preliminary decree an appeal

against the preliminary decree, if within time, can be filed, and if the appellant succeeds therein, the final decree will automatically fall, like a branch

after the trunk has been cut. But all this is mere abstract speculation for our purposes. In the present case, not only had the Court a discretion to

order security and exercised it judiciously, but the petitioner himself admittedly gave in undertaking in the lower Court not to alienate us remaining

properties. Mr. Srinivasa Rao''s contention that that undertaking would do and that an order for security was uncalled for, is not convincing. ''Bona

fide'' purchasers for value without notice -- and they will crop up in no time in present day conditions -- will not be bound by any such undertaking,

of which they are ignorant. So, a security will be of far greater value to a plaintiff than an undertaking of the above nature.

In the end, therefore, this petition deserves to be, and is hereby dismissed, but without costs as it was obviously filed relying on the Bench ruling

in ''Periaya Miyan Marakayar v. Subramania lyer'', 46 M.L.J. 255 which cannot be said to have been overruled, though it has been interpreted in

what I consider to be the only reasonable way by a single Judge, Varadachariar, J., in the later ruling in Thyagarja Mudaliar v. ''Vedathunnl'' 70 M.

L. J. 241.