TMI Blog2004 (11) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate Court and the High Court have rightly held that the petition under Order IX Rule 13 of the Code would not lie in view of the filing of an appeal against the decree by the appellant and the dismissal of the appeal though for default, since a dismissal for default or on the ground of it being barred by limitation cannot be equated with a withdrawal of the appeal. Consequently, the decision of the High Court is affirmed and this appeal is dismissed. - Civil Appeal No. 5550 of 2004 - - - Dated:- 4-11-2004 - R.C. Lahoti, G.P. Mathur and P.K. Balasubramanyan, JJ. Shri Ranjit Kumar, Sr. Advocate, Manoj K. Mishra, Sanjay Visen, Shukanta Banerjee and N.S. Bisht, Advocates with him, for the Appellant. Shri M.N. Krishnamani, Sr. Advocate, Rajeev Sharma, Ms. Neelam Sharma, Ajay Sharma, Tarun Sharma and Tara Chand Sharma, Advocates with him, for the Respondent. JUDGMENT Respondent No. 1 herein filed Title Suit No. 89 of 1992 on the file of the Munsif s Court at Howrah against the appellant and others for a declaration of his title as a Thika Tenant in respect of the plaint A schedule property and for other consequential reliefs. The appellant herein defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed for default. In other words, both the application under Section 5 of the Act for condoning the delay in filing that appeal and the appeal against the ex parte decree filed by the first defendant stood dismissed for default. 5. In the trial Court, the petition for setting aside the ex parte decree filed under Order IX Rule 13 of the Code came up for hearing. On behalf of the plaintiff, an objection was raised that in view of the filing of Title Appeal No. 157 of 1996 by the first defendant against the ex parte decree and in view of the explanation to Order IX Rule 13 of the Code, the application under Order IX Rule 13 of the Code could not be entertained by the Court which had passed the ex parte decree. On behalf of the first defendant - the appellant, it was contended that since the appeal filed by the appellant against the ex parte decree was dismissed for default as a consequence of the dismissal of the application for condoning the delay in filing that appeal being dismissed for default, the explanation created no bar to the entertaining of the petition under Order IX Rule 13 of the Code, especially in the context of the fact that the delay in filing that petition had al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Civil Procedure (Amendment) Act, (Act No. 104 of 1976), which came into force with effect from 1-2-1977, reads as under : Explanation. - Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree. It is argued on behalf of the appellant that on the day the petition under Order IX Rule 13 of the Code was filed, no appeal against the decree had been filed or was in existence and consequently, the bar created by the explanation did not apply since it only provided that a petition under Order IX Rule 13 of the Code could not be entertained only in a case where the ex parte decree was already subjected to an appeal. To add emphasis to this argument, he also submitted that on the day the Trial Court took up the petition under Order IX Rule 13 of the Code for consideration, the appeal against the decree itself had been dismissed for default and hence no appeal was in existence. There was no decision on merits in the appeal so as to bring about a merger of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the term and that it is no less an appeal because it is irregular or incompetent. These observations were referred to with approval by this Court in Raja Kulkarni and others v. The State of Bombay (1954 SCR 384). 9. The specific question involved, came to be considered by this Court in Messrs Mela Ram and Sons v. The Commissioner of Income Tax, Punjab (1956 SCR 166). This Court held that an appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in an appeal. This Court referred to and followed the view taken by the Privy Council and by this Court in the two respective decisions above referred to. This Court quoted with approval the observations of Chagla C.J. in K.K Porbunderwalla v. Commissioner of Income Tax (1952) 21 ITR 63 to the following effect : ......although the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under Section 31 and the effect of that order was to confirm the assessment which had been made by the Income-tax Officer. In Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332) rendered by four learned Judges of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to the divergent views on that question in the Calcutta High Court prior to the rendering of the decision of this Court in Messrs Mela Ram and Sons (supra) had not considered the decisions of this Court in Raja Kulkarni (supra) and in Messrs Mela Ram and Sons (supra), in coming to that conclusion. In fact it is seen that there was no discussion on that aspect as such, though there was a reference to the conflict of views in the decisions earlier rendered by the Calcutta High Court. Since the ratio of that decision runs counter to the principle laid down by this Court in Messrs Mela Ram and Sons (supra), obviously the same could not be accepted as laying down a correct law. 12. Learned Counsel placed reliance on the decision in Ratansingh v. Vijaysingh and Others [(2001) 1 SCC 469] rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay would not amount to a decree and, therefore, dismissal of an appeal as time barred was also not a decree. That decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the light of the departure made from the previous position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the defendant, then filed a petition under Order IX Rule 13 of the Code for setting aside the ex parte decree along with an application under Section 5 of the Limitation Act. The Trial Court dismissed the application holding that no sufficient cause was made out for condoning the delay in filing the petition under Order IX Rule 13 of the Code. The husband filed a Civil Miscellaneous Appeal in the High Court challenging the said order of the Trial Court. The High Court took the view that the explanation to Order IX Rule 13 of the Code did not create a bar to the maintainability of the petition under that Rule as the appeal against the ex parte decree had been dismissed not on merits but on the ground of limitation by not accepting the application for condonation of delay which meant that no appeal was preferred in the eye of law. This view of the High Court was challenged in appeal before this Court. It was argued that the High Court has misunderstood the scope and ambit of the explanation to Order IX Rule 13 of the Code and that in the circumstances, the High Court should have held that the petition under Order IX Rule 13 of the Code would not lie. This Court accepted that conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal against an ex parte decree as barred by limitation, prevented the Trial Court which passed the ex parte decree, from exercising its power under Order IX Rule 13 of the Code in view of the explanation. 14. It was sought to be argued on behalf of the appellant that the above decisions were distinguishable in view of the fact that in those cases, the appeals against the decrees were filed first, followed by the petitions under Order IX Rule 13 of the Code, whereas in the present case the petition under Order IX Rule 13 of the Code was filed first and only during its pendency, an appeal against the decree was filed, with an application for condoning the delay in filing it. In our view, this would not make any difference to the principle enunciated by this Court in Rani Choudhury s case (supra). Moreover, on the day the Trial Court was called upon to consider and dispose of the petition under Order IX Rule 13 of the Code, an appeal, though belated, had been filed against the decree by the appellant and the same had been dismissed as barred by limitation and had not been withdrawn. It is not possible to accept the argument that the application of the explanation should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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