AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
16 paragraphs · 405 wordsThis is a petition by the 2nd respondent in this appeal under Order 9, Rule 13, C.P.C, to set aside an exparte decree obtained against him in the
lower court in the suit now under appeal, and in support of this application reliance was placed on a decision in Sankara Bhatta v. Subraya Bhatta
ILR (1907) Mad. 535. That was a case in which the application was made after the appeal had been disposed of and the case is, therefore,
distinguishable. That case, however, proceeds upon the ground that the filing of the appeal divested the lower court of the power to entertain that
application. There was some warrant for that view in earlier decisions at the time when that judgment was given, but the matter has been
abundantly considered since and we think it must now be taken as settled, at any rate in all the other High Courts, that the me/e filing of an appeal
does not take away the jurisdiction of the lower court to entertain such an application as this. We may also observe that the decision in
Ramanathan Chatty v. Narayanan Chetty ILR (1904) Mad. 602 as to the proper court to which a review application should be made which was
relied on in Sankara Bhatta v. Subraya Bhatta ILR (1907) Mad. 535 was subsequently overruled by a Full Bench of this Court to which I was a
party in Chenna Reddi v. Peddabbi Reddi ILR (1908) Mad. 416 (F.B.). This question has been elaborately considered in a number of recent
cases Mathura Prasad v. Ram Charn Lal I.L.R.(1915) All. 208 Gajaraj Mate Tiwarin v. Swami Nath Roy Chowdhury ILR 39 All. 13 and we are
clearly of opinion, on the authority of these decisions and also of the Full Bench decision of this Court in Chenna Reddi v. Peddabbi Reddi ILR
(1908) Mad. 416 that this application should have been made to the lower Court and not to this Court. Order 9, Rule 13, expressly provides that
the party may apply to the Court by which the decree was passed and the petitioners were clearly wrong in presenting their petition to this Court
pending the appeal and ought to have gone to the Lower Court. In the result the petition will be returned to the petitioner to enable him to take
such further action on it as he may be advised. The petitioner will pay counter petitioner''s costs.