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Statutory Appeal Can Be Filed Even If Application To Set Aside Ex-Parte Decree [ Order IX Rule 13 CPC] Is Dismissed: SC [Read Judgment]

Ashok Kini
7 May 2019 12:28 PM GMT
Statutory Appeal Can Be Filed Even If Application To Set Aside Ex-Parte Decree [ Order IX Rule 13 CPC] Is Dismissed: SC [Read Judgment]
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"Only in cases where the defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing the two remedies consecutively, the court may decline to condone the delay in filing the first appeal."

The Supreme Court has observed that the right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC [to set aside ex-parte decree] has been dismissed. In Bhivchandra Shankar More vs. Balu Gangaram More, the bench comprising Justice...

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The Supreme Court has observed that the right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC [to set aside ex-parte decree] has been dismissed.

In Bhivchandra Shankar More vs. Balu Gangaram More, the bench comprising Justice R. Banumathi and Justice R. Subhash Reddy considered these issues: (i) Whether the time spent in the proceedings taken to set aside the ex-parte decree constitute "sufficient cause" within the meaning of Section 5 of the Indian Limitation Act, 1908 so as to condone the delay in preferring an appeal against the ex-parte decree on merits? (ii) When an application filed under Order IX Rule 13 CPC has been dismissed on merits, whether regular appeal under Section 96(2) CPC is barred?

Answering these issues, the bench said that the scope of Order IX Rule 13 CPC and Section 96(2) CPC are entirely different. Explaining the difference the bench said:

"In an application filed under Order IX Rule 13 CPC, the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any "sufficient cause" from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was prevented for "sufficient cause", the court may set aside the ex-parte decree and restore the suit to its original position. In terms of Section 96(2) CPC, the appeal lies from an original decree passed ex-parte. In the regular appeal filed under Section 96(2) CPC, the appellate court has wide jurisdiction to go into the merits of the decree."

The court observed that merely because the defendant pursued the remedy under Order IX Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order IX Rule 13 CPC is dismissed. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed, it said.

The court also observed that the observation of the High Court that "the remedies provided as simultaneous and cannot be converted into consecutive remedies" cannot be applied in a rigid manner and as a straitjacket formula.

"It has to be considered depending on the facts and circumstances of each case and whether the defendant in pursuing the remedy consecutively has adopted dilatory tactics. Only in cases where the defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing the two remedies consecutively, the court may decline to condone the delay in filing the first appeal. If the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 CPC, the defendant would be deprived of the statutory right of appeal in challenging the decree on merits."

It also said that "sufficient cause" should be given liberal construction and generally, delays in preferring appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay. Taking into account the circumstances in this case, the bench said that the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as "sufficient cause" for condoning the delay in filing the first appeal.

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