Civil Procedure Code, 1908 – Or.9 r 13 – sec. 96 – Ex-Parte Decree – Setting aside – Power of Appellate Court – Condonation of Delay – In Absence of Application – The appellants filed a suit for declaration and possession – Ex-parte decree was passed by the trial Court against the respondents – Appeal was preferred by the respondents before the First Appellate Court after delay of
2 years and 7 months – Respondent filed application for condonation of delay, however he withdrew the same later on – First Appellate Court dismissed the appeal on the ground of limitation in absence of any application to condone the delay – Respondents filed second appeal before the High Court – The High Court allowed the second appeal and also set aside the ex-parte judgment and decree passed by the Trial Court – High Court remanded the matter to the Trial Court for fresh decision of the suit in accordance with law – On appeal, held: What was challenged before the High Court was the judgment and order passed by the First Appellate Court dismissing the first appeal u/s. 96 of the CPC as not maintainable in absence of any delay condoned application – It appears that the High Court proceeded further with the hearing of the appeal as if the High Court was considering the appeal against the order passed on an application under Order IX Rule 13 CPC – Whereas the appeal was against the order and decree passed by the trial Court, which was affirmed by the First Appellate Court as barred by limitation – The procedure adopted by the High Court is unknown to the procedure known to law under the provisions of the CPC – Therefore, the impugned judgment and order passed by the High Court is unsustainable.
Allowing the appeal, the Court
HELD: 1. It is required to be noted that what was challenged before the High Court was the order/judgment and order passed by the First Appellate Court dismissing the first appeal under Section 96 of the CPC as not maintainable in absence of any delay condoned application. There was no decision by the First Appellate Court on merits. If the High Court was of the opinion that the First Appellate Court erred in not condoning the delay in appeal and dismissing the appeal on the ground of limitation, in that case the High Court could have set aside the order passed by the First Appellate Court dismissing the appeal on the ground of limitation and thereafter remand the matter to the First Appellate Court to decide the appeal on merits. From the impugned judgment and order passed by the High Court, it appears that the High Court proceeded further with the hearing of the appeal as if the High Court was considering the appeal against the order passed on an application under Order IX Rule
13 CPC, whereas the appeal was against the order and decree passed by the Trial Court, which was affirmed by the First Appellate Court as barred by limitation. Therefore, the procedure adopted by the High Court is unknown to the procedure known to law under the provisions of the CPC. Therefore, the impugned judgment and order passed by the High Court is unsustainable. [Paras 5 & 6][987-G-H; 988-A-C]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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