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Andhra Pradesh High Court
Judges : A.SAMBASIVA RAO, S.MADHUSUDAN RAO
Nandipati Rami Reddi - Appellant
Versus
Nandipati Padma Reddy - Respondent
Decided On : 02-02-77
RESTORATION OF SUIT - INTERLOCUTORY ORDERS - OPERATION DURING PERIOD OF DISMISSAL - EFFECT - ALIENATION DURING PERIOD OF DISMISSAL - VALIDITY - CONTEMPT OF COURT - ENTRY UPON POSSESSION AFTER DISMISSAL - EFFECT OF RESTORATION.
Fact of the Case:
A suit was dismissed for default and subsequently restored. The plaintiff filed an application for the appointment of a Receiver for the entirety of the plaint schedule properties, including those claimed to have been allotted to the share of the 2nd defendant. The Court acceded to this request and appointed a Receiver. The 2nd defendant filed an appeal against this order, and a Division Bench of the High Court partly allowed the appeal, holding that there was no justification for the appointment of a Receiver, but directed defendants 1 and 2 to deposit towards the maintenance of the plaintiff and defendants 3 and 4, 1/4th of the income released from the lease of the rice mills, buildings etc., within one month of their collections. The Division Bench also permitted the plaintiff to approach the trial Court for directions as to the withdrawal of the amounts thus deposited. On 31-12-1971 the suit was dismissed for default. A petition under O. 9, R. 9, C. P. C. was filed to set aside the order of dismissal for default and restore the suit, within 30 days from 31-12-1971. By an order dated 19th of August, 1974 the Court allowed that petition, set aside the order and restored the suit. Thereupon the plaintiff filed I. A 992/74 for directing defendants 1 and 2 to make deposits as per the judgment of this Court in C. M. As 440 and 441 of 69. The two defendants resisted this application saying that when the suit was dismissed , the interlocutory orders came to an end and the restoration of the suit did not revive them.
Finding of the Court:
The Court held that once the suit is restored, the interlocutory orders passed before the dismissal of the suit are also restored. The Court further held that the mere fact of restoration would not by itself make the alienation, made subsequent to the dismissal but before the restoration, invalid. The Court also held that the plaintiff would be at liberty to apply to the trial Court for the appointment of a Receiver if the defendants-appellants do not comply with the orders of the Court in regard to deposit.
Issues: 1. Whether the interlocutory orders passed before the dismissal of a suit for default are revived along with the suit when the order of dismissal has been set aside and the suit has been restored? 2. Whether an alienation made during the period between the dismissal and restoration of a suit is invalid? 3. Whether a defendant who enters upon possession of the land after the dismissal of a suit for default can be held in contempt of Court after the restoration of the suit?
Ratio Decidendi: 1. Once the order of dismissal is set aside on the Court being satisfied that the plaintiff was prevented by sufficient cause from appearing before the Court on the appointed day, he must be restored to the position in which he was situated when the Court dismissed the suit for default. It is true that the Court has powers to limit the order of restoration in one way or the other, in view of the provision in cl. (1) of R. 9 of O. 9, C. P. C. that the Court can make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. Unless the Court either expressly or by necessary implication excludes the operation of the interlocutory orders during the period between the dismissal and the restoration, it may be safely presumed that their enforcement during that period was also restored. 2. The mere fact of restoration would not by itself make the alienation, made subsequent to the dismissal but before the restoration, invalid. The plaintiff will have to take other appropriate proceedings to avoid that alienation. That is because when the alienation was made it was in accordance with law and not contrary to any order of the Court. Further, the rights of strangers or third parties are brought into play during that time and simple restoration of the suit would not ipso facto affect the validity of the alienation. 3. Likewise, there was an injunction before the dismissal of the suit, if the defendants enters upon possession upon the suit land after the dismissal of the suit for default, no proceedings for contempt of Court can be taken against him after the restoration of the suit. That is also because the defendant entered upon possession of the land after the suit was dismissed and when the injunction order was not actually in force though it was revived later with the restoration.
Final Decision: The Letters Patent Appeal and the Civil Miscellaneous Appeal were dismissed with costs.
( 1 ) THE question which arises in both these appeals is when a suit has been dismissed for a default and has been subsequently restored, whether the interlocutory orders passed by the Court in the suit before the dismissal for default would be considered to be in operation during the period between the dismissal and restoration. Does the restoration of the suit revive the operation of those orders during the period between the dismissal and the restoration ?
( 2 ) SINCE the two appeals relate to the same dispute and arise out of the same order, we will dispose them of under a common judgment. The Letters Patent Appeal has been preferred by the 2nd defendant while the Civil Miscellaneous Appeal has been preferred by the 1st defendant. Indeed, the Letters Patent Appeal is preferred against the Civil Miscellaneous Appeal which was filed by the 2nd defendant. Since the appeal preferred by the 1st defendant was not heard along with that Civil Miscellaneous Appeal, it is brought up for decision along with the Letters Patent Appeal preferred by the 2nd defendant against the dismissal of his Civil Miscellaneous Appeal.
( 3 ) O. S. No. 6/70, was filed in the Subordinate Judges Court, Gudivada, by the present 1st respondent (in the Letters Patent Appeal) for partition of certain properties and for possession of a share therein. He impleaded four defendants to the suit. The first defendant was his own father, the 2nd defendant was his fathers elder brother, the third defendant was his mother and the 4th defendant his sister. One of the defences was that there was a partition between the two brothers viz. , defendants 1 and 2 and consequently the latter was not a necessary party to the suit.
( 4 ) THE plaintiff filed I. A. No. 1261/68 for the appointment of a Receiver. The Court acceded to this request and by its order dated 3-12-1969 appointed a Receiver for the entirety of the plaint schedule properties including those which were claimed to have been allotted to the share of the 2nd defendant. Against this order the second defendant filed in this Court C. M. A. No. 440/69 and the 1st defendant C. M. A. No. 441/69. A Division Bench of this Court partly allowed these appeals holding that there was no justification for the appointment of a Receiver, but at the same time directed defendants 1 and 2 to deposit towards the maintenance of the plaintiff and defendants 3 and 4, 1/4th of the income released from the lease of the rice mills, buildings etc. , within one month of their collections. The Division Bench also permitted the plaintiff to approach the trial Court for directions as to the withdrawal of the amounts thus deposited. On 31-12-1971 the suit was dismissed for default. A petition under O. 9, R. 9, C. P. C. was filed to set aside the order of dismissal for default and restore the suit, within 30 days from 31-12-1971. By an order dated 19th of August, 1974 the Court allowed that petition, set aside the order and restored the suit. Inter alia it found that the 1st defendant misled the plaintiffs mother and next friend viz. , the 3rd defendant, who was no other than the wife of the 1st defendant, by pretending that the matter was compromised and that the same would be reported to the Court. Since the plaintiffs next friend was led by her husband to be under this impression, she did not appear in Court on 31-12-1971 on which day the suit was dismissed for default. Holding that this was sufficient explanation for the non appearance of the plaintiffs next friend , the dismissal order was set aside and the suit was restored.
( 5 ) THEREUPON the plaintiff filed I. A 992/74 for directing defendants 1 and 2 to make deposits as per the judgment of this Court in C. M. As 440 and 441 of 69. The two defendants resisted this application saying that when the suit was dismissed , the interlocutory orders came to an end and the restoration of the suit did not revive them. In any case , those orders passed before the dismissal of th
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