Issuance of notice under Order 41 in appeal in forma pauperis to respondent.

This petition is to revise the order of the Subordinate Judge of Mayuram in O.P. No. 4 of 1959. This original petition was an unfiled appeal at the instance of the first defendant in a suit on a promissory note. A decree had been passed by the District Munsif and the first defendant appealed against that decree in forma pauperis. The Subordinate Judge, without complying with the provisions of Order 44, rule 1 (2), Civil Procedure Code, and satisfying himself that the decree was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust, issued notice to the respondent. After the respondent appeared, the Subordinate Judge considered this question in the presence of the respondent and came to the conclusion that the decree appealed against was neither contrary to law nor unjust. He also discussed the merits of the case put forward by the appellant and found no substance in them.

Against the order dismissing the appeal, Mr. Sundaralingam urges two points.. The first is that after having issued notice to the respondent under Order 41, there was no jurisdiction in the learned Subordinate Judge to consider the question of the decree being unjust or contrary to law, which he was bound to consider under Order 44, rule 1 (2), Civil Procedure Code. This question has come up for consideration in Suryanarayanamurthi v. Nagachandramowli1 . There the facts were, an appellate Judge received an application to appeal in forma pauperis and without considering whether or not there was any substance in the appeal, he issued notice to the respondent. After the respondent appeared the learned Judge proceeded to consider whether the decree was contrary to law or unjust, and coming to a conclusion in the negative on that point, he dismissed the appeal. The procedure adopted by the learned Judge was questioned as erroneous, and Horwill, J., in dealing with that point, observed thus:

“Here it is known definitely that the District Judge did not consider the question raised by Order 44, rule 1, and that when he realised he had issued a notice to show cause why the petitioner should not be allowed to appeal, he rescinded it. I do not see that the District Judge acted wrongly in so doing. Clearly an appeal should not be admitted until the Judge is satisfied that the decree of the Court appealed against is contrary to law or is otherwise erroneous or unjust. He was, therefore, justified in correcting his error.”

Mr. Sundaralingam, seeing the force of this observation, contended that the very fact of issuing notice to the respondent must be construed as amounting to an irrefutable presumption that the learned Judge had considered the question which he was bound to consider under Order 44, rule 1 (2), and consequently the Judge had no further jurisdiction to correct any error which he must be deemed to have committed by issuing notice without considering the question of the illegality of the decree. I do not see any justification for this view from the language of Order 44, rule 1 (2). It is no doubt true that it is the duty of the Judge to satisfy himself on perusing the decree and the judgment that the decree is illegal or contrary to law before making up his mind to issue notice to the respondent. But, if the learned Judge has committed an error in issuing notice without performing the duty imposed upon him under Order 44, rule 1 (2), I do not find any reason for holding that he had no jurisdiction to correct his own error. Indeed, this principle acted upon by Horwill, J., cannot be taken exception to unless some vested interest or right had been conferred upon the other party by the error committed by the Court. In the absence of any such vested interest accruing to the party, the Court has inherent jurisdiction always to correct its own errors. Mr. Sundaralingam referred to the Bench decision in Somasundaram Chettiar v. Arunachalam Chettiar1, where a Bench consisting of Ramesam and Madhavan Nair, JJ., had to consid