Yagammal vs Arulayee Ammal and Others

Venkatasubba Rao, J.—The main question in the Civil Revision Petition is, is a suit liable to be dismissed for default after the passing of the

preliminary decree? The plaintiff filed this suit for partition and in 1923 obtained a decree directing certain items to be partitioned. From this

judgment, she filed an appeal and the Appellate Court varied the decree in her favour by directing partition of some additional items. When the

case went back to the Trial Court, it fixed a date for the appearance of parties. Neither the plaintiff nor the defendant having appeared on the day

fixed, the Court made an order on the 9th of May, 1925, dismissing the suit for default. It is this order that is impeached in the revision petition

before us. On the merits there can be no question that this order cannot be supported. As pointed out by the Privy Council

After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making

of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside."" ( AIR 1924 198 (Privy

Council) ).

A similar view was taken by the Allahabad High Court in an earlier case. See Masum-un-nissa v. Latifan I.L.R.(1910) A. 319.

But then a preliminary objection is raised that this revision petition does not lie. The argument may be thus stated. The plaintiff applied to the

Lower Court for the restoration of the suit under Order 9, Rule 9, Civil Procedure Code. That application was dismissed by an order, dated 16th

March, 1926. The respondent contends that an appeal lies from the last mentioned order under Order 43, Rule 1(c) and that the High Court ought

not to exercise its revisional powers when the party aggrieved has a remedy by way of appeal. The answer is simple. The order dismissing the suit

cannot be treated as one made under the provisions of Order 9, Civil Procedure Code. That is the effect of the decision of the Privy Council to

which we have referred. It follows necessarily that, although the plaintiff''s application to restore the suit purports to have been made under Order

9, it is not in fact governed by the provisions of that chapter at all..:, It must be deemed to be an application u/s 151 for the exercise of the Court''s

inherent powers. The preliminary objection thus fails.

In the result, we allow the Civil Revision Petition and set aside the order of the Lower Court, dated the 9th May, 1925. The District Munsif will

restore the case to his file and allow the plaintiff to take further.proceedings in the suit.

In the circumstances, we direct each party to bear his costs.