Seshamsetti Venkata Rattamma v. Raya Chinna Narasareddi .

(1) The plaintiff had filed the suit against the defendant, who is the petitioner before me, for recovery of a sum of rs. 12,430 - 75 p. Inclusive of interest, on the basis of a mortgage deed.

(2) Defendant pleaded that she had made two payments amounting to rs. 8,000 and that the defendant was a labourer and as such she is entitled to be benefits of vii of 1977 (andhra pradesh agricultural indebtedness (relief act) ).

(3) Lioth the pleas of the defendant were decided against her and the suit was decreed, she preferred an appeal in forma pauperis and filed a petition to permit her to prosecute the appeal as an indigent person. That petition was dismissed on 4th august, 1979, and she was given an opportunity pay the court - fee. She could not do so and therefore the appeal was rejected. Hence this revision.

(4) Sri g. Narayana rao, learned advocate appearing on behalf of the petitioner contends that the court while fixing the value of the house, belonging to the petitioner herein, at rs. 40,000 acted in an extremely arbitrary manner and as per the very order, it would be clear that no reasons are forthcoming as to how the court has fixed the value of the house at rs. 40,000 and as to what was the evidence before it.

(5) Before i answer this contention, it would be proper to meet the preliminary objection advanced by mr. Ramakrishna raju, counsel appearing for the respondent - plaintiff. His contention is that this revision is not maintainable, because the appeal is rejected for non - payment of court - fee and therefore it tantamounts to a decree and as such, the defendant ought to have preferred an appeal against the order rejecting the appeal. Mr. Narayana rao submits that, having regard to the provisions of section 2 of the code of civil procedure, it is only when a plaint is rejected for non - payment of courtfee, such an order of rejection would tantamount to a decree, but section 2, civil procedure code, is completely silent with regard to the rejection of appeal and therefore could not prefer an appeal. In support of his contention mr. Narayana rao has cited a decision of madras high court (full bench) in in re, kayambu filial.

(6) Mr. Raju has also cited several ruling in support of his contention, notably the decision in b. Desi reddy v. Y. Rama rao ; kantimati ammal v. Ganesh iyer; satyanarayana chwyulu v. Ramalingam and ratnavelu pillai v. Varadaraju filial. To my mind the contention advanced by mr. Narayana rao is to be accepted, because sub - section (2) of section 2, civil procedure code, defines a decree as follows:

" 'decree' means the formal expresion of an adjudication which, so far as regards the court expression, it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the detrimentation of any question within section 47 or section 144. But shall not include (1) any adjudication form which an appeal lies as an appeal from an order, or (b) any order of dismissal for default"

(7) A plain reading of the section would show that it is only when a plaint is rejected that such an order would be treated as a decree as provided by sub - section (2) of section 2 of civil procedure code, the legislalure is singularly silent. With regard to the rejection of an apppeal and therefore by no stretch of imagination, the rule providing rejection of plaint in sub - section (2) of section 2, would be applicable to the rejection of an appeal. That is what the full bench of the madras high court has held in the ruling cited above.

(8) The rulings relied on by mr. Ramakrishna raju have relevancy at all to the case an hand because all those rulings relate to the rejection of plaint. It is only when a plaint is rejected that rejection becomes a decree and section 2, civil procedure code, is silent with regard to the rejection of appeal. Hence i am of the opinion that this revision is maintainable.

(9) So far as the contention of mr. Narayana rao that the order of the lower court fixing the value of the property at rs. 40,000 is arbitrary i have no other alternative than to accept the same. A perusal of the order under revision shows that there is no material before the lower court on the basis of which it arrived at the value of the property at rs. 40,000. To my mind it is an extremely arbitrary approach. Hence i allow this revision, set aside the order of the lower court and remand the case to the lower court to dispose of the petition after inquiring info it with regard to the value of the property, calling upto the appellant before it to deposit the court - fee within a reasonable time.

(10) Having regard to the circumstances of the case, there will be no order as to costs. Revision allowed ; case remanded.