9911796707
Advanced Search 
TMI Blog2004 (11) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... The plaintiff filed an appeal against that order under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (for short "the Code") and that appeal was also dismissed by the District Judge on 16-3-1994. 2. The suit itself stood posted to 8-10-1996. The appellant - the first defendant, did not appear. The evidence of the plaintiff was recorded. On 9-10-1996 the plaintiff filed two applications - one for an amendment of the plaint and the other for certain corrections in the plaint. Those applications were allowed the same day in the absence of any opposition. In view of his absence, the first defendant, the appellant, was set ex parte and on 11-10-1996, the suit was decreed ex parte. 3. On 16-11-1996, the first defendant, the appellant, filed a petition under Order IX Rule 13 of the Code accompanied by an application under Section 5 of the Limitation Act for condoning the delay in filing the petition for setting aside the ex parte decree. Both the applications were opposed by the plaintiff. On 21-11-1996, the first defendant - the appellant, also filed an appeal, Title Appeal No. 157 of 1996, against the ex parte decree along with an application for condoning the dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition under Order IX Rule 13 of the Code could not be entertained or relief granted to the first defendant in view of the explanation to Order IX Rule 13 of the Code. Thus, the petition for setting aside the ex parte decree was dismissed. The first defendant challenged that decision in an appeal under Order XLIII Rule 1 of the Code. The lower appellate court agreed with the conclusion of the Trial Court that the explanation to Order IX Rule 13 of the Code precluded the Court from exercising its power to set aside the ex parte decree. Thus, the appeal was dismissed. The first defendant challenged the same in a proceeding before the High Court under Article 227 of the Constitution of India. The High Court held that the question posed for decision was covered by decisions of this Court referred to by it in its order and in the light of those decisions the order of the Trial Court as affirmed by the District Court, could not be interfered with. The High Court, thus, dismissed the petition filed by the first defendant under Article 227 of the Constitution of India. The first defendant has challenged this order of the High Court in this appeal. 6. On the facts, it is thus clear, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in filing the appeal filed in terms of Order XLI Rule 3A of the Code read with Section 5 of the Limitation Act, it had to be taken that there came into existence no appeal in the eye of law and consequently, the bar created by the explanation did not apply. He ultimately submitted that the dismissal of an appeal for non prosecution amounts to a withdrawal of the appeal by the appellant and consequently it cannot stand in the way of the petition filed under Order IX Rule 13 of the Code being heard and disposed of on merits. On behalf of the plaintiff-respondent it is submitted that the arguments raised could not be accepted in the light of the decisions of this Court referred to and followed by the High Court and there was also no occasion for reconsidering the correctness of those decisions since the law has been correctly laid down in those decisions. It is submitted that the dismissal of an appeal for default or on the ground that it was barred by limitation cannot be considered as a withdrawal of the appeal excluding the operation of the explanation to Order IX Rule 13 of the Code. Nor can it be contended that an appeal filed with a petition for condoning the delay in filing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits, itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal." In Board of Revenue v. M/s. Raj Brothers Agencies etc. [1973 (3) SCR 492], this Court approved the decision of the Madras High Court which had applied the principle stated in Messrs Mela Ram and sons (supra). 10. The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi v. Mathew [1987 (2) KLT 848]. Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3A of Order XLI introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of their Lordships. The principle laid down by a three Judge Bench of this Court in M/s. Mela Ram and Sons (supra) and that stated in Sheodan Singh (supra) was, thus, not noticed and the view expressed by the two Judge Bench, cannot be accepted as laying down the correct law on the question. Of course, their Lordships have stated that they were aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the definition of a decree obtaining in the Code. Thereafter noticing the decision of the Calcutta High Court above referred to, their Lordships in conclusion apparently agree with the decision of the Calcutta High Court. Though the decision of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey (supra) was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908, and there was a departure in the legal position in view of Article 136 of the Limitation Act, 1963. But with respect, we must point out that the decision really conflicts with the ratio of the decision in Messrs Mela Ram and Sons and Sheodan Singh (supra) and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder IX Rule 13 of the Code would not lie and should not be entertained. Hence, even though the appeal against the ex parte decree was disposed of on the ground of limitation and not on merits, the explanation to Order IX Rule 13 of the Code was attracted and hence no petition under Order IX Rule 13 of the Code would lie. On the scope of the explanation, it was stated that the disposal of the appeal as contemplated in the explanation was not intended to mean or imply a disposal on merits resulting in the merger of the decree of the Trial Court with a decree, if any, of the Appellate Court on the disposal of the appeal. The disposal of the appeal may be on any ground and though the withdrawal of an appeal by an appellant is also to be considered a disposal of the appeal, the same has been expressly exempted by the explanation. It was also observed that the legislative intent incorporated in the explanation to Order IX Rule 13 of the Code was to confine the defendant to a single course of action and to discourage the prolonging of the litigation on the ex parte decree, namely, by preferring an application to the Trial Court under Order IX Rule 13 of the Code for setting aside the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument, in our view, would tend to defeat the legislative scheme as noticed in Rani Choudhury's case (supra). In the light of the object sought to be achieved by the introduction of the explanation to Order IX Rule 13, such an argument cannot also be accepted. 15. We are not impressed by the argument of learned Counsel for the appellant that the decision in Rani Choudhury's case (supra) requires reconsideration. On going through the said decision in the light of the objects and reasons for the introduction of the explanation to Order IX Rule 13 and the concept of an appeal as indicated by the Privy Council and this Court in the decisions already cited, the argument that an appeal which is dismissed for default or as barred by limitation because of the dismissal of the application for condoning the delay in filing the same, should be treated on a par with the non-filing of an appeal or the withdrawal of an appeal, cannot be accepted. The argument that since there is no merger of the decree of the Trial Court in that of the appellate Court in a case of this nature and consequently the explanation should not be applied, cannot also be accepted in the context of what this Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
