TMI Blog1982 (8) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... decree, superseded the trial court decree by reversing, confirming or varying it that the trial court could not proceed to set aside its ex parte decree. For the trial court decree was said to have merged with the appellate decree. There are of course cases where the trial court decree does not merge with the appellate decree. Such instances arise when the appeal is dismissed in default, or where it is dismissed as having abated by reason of the omission of the appellant to implead the legal representatives of a deceased respondent or where it is dismissed as barred by limitation. So there a limited area where the trial court decree merges in the appellate decree and when that takes place an application before the trial court for setting aside the decree loses all meaning. It was a limited area defined by the operation of the doctrine of merger. From February 1, 1977 the area was extended enormously. With the Explanation in operation, no application for setting aside an ex parte decree can lie where the defendant has filed an appeal and the appeal has been disposed of on any ground other than the ground that the appeal has been withdrawn by the appellant. No doubt the provision des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The legislative attempt incorporated in the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under r. 13 of O.9. The disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation. In the present case, the appeal was dismissed as barred by limitation. That it was an appeal even though barred by time is clear from M/s. Mela Ram Sons v. Commissioner of Income-tax,(1) where Venkataram Ayyar, J., speaking for the court, after referring to Nagendranath Dey v. Suresh Chandra Dey,(2) Raja Kulkarni and Ors. v. The State of Bombay(3) and Promotho Nath Roy v. W.A. Lee(4) held that an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal. There can be no dispute then that in law what the respondent did was to file an appeal and that the order dismissing it as time-barred was one disposing of the appeal. Accordingly, the appeal is allowed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay and in that view of the matter the learned Trial Judge dismissed both the applications. Against the order of the Trial Judge, the respondent filed an appeal in the High Court. The main contention of the husband, the appellant in the High Court, was that the Trial Court was in error in coming to the conclusion that no sufficient cause for condonation of delay had been made out and the Trial Court had also erred in not setting aside the ex-parte decree as there was sufficient cause for non-appearance of the husband on the date fixed for the hearing of the petition for divorce. On behalf of the wife, the respondent in the appeal before the High Court, it was urged that the Trial Court was clearly right on merits in coming to the conclusion that no sufficient cause had been made out for condonation of delay and for setting aside the decree and it was further urged that in view of the provisions contained in the Explanation in order 9, rule 13 of the Code of Civil Procedure, the application for setting aside the ex-parte decree was not maintainable, as the appeal preferred by the husband against the ex-parte decree had already been dismissed by the High Court. The High Court for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul Majid v. Jawahar Lal (1) and of the Calcutta High Court in the case of Kalumuddin Ahmed v. Esabakuddin ors (l) are of no assistance in interpreting the provisions contained in the Explanation in order 9, rule 13 of the Code of Civil Procedure. The learned Counsel has further submitted that the High Court went wrong in interfering with the findings of the Trial Court that no sufficient cause had been made out for condonation of delay in filing an application under order 9, rule 13 of the Code and in any event there is no justifiable reason for non-appearance of the respondent on the due date for the hearing of the matter. On behalf of the respondent-husband, it has been urged that on a true interpretation of the Explanation, the High Court has correctly held that the Explanation will not apply to a case where the appeal preferred against an ex-parte decree is dismissed not on merits but on the ground of limitation. It is the argument of the learned counsel that the Explanation will only apply when the appeal is dismissed on merits, as in such a case the decree of the Trial Court gets merged with the decree of the appellate Court and naturally the trial Court loses its com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for Proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. 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 that ex-parte decree. Order 9, rule 13 makes provision for the setting aside of an ex-parte decree against the defendant. It lays down the conditions and also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the appeal, as contemplated in the Explanation. It is significant to note that though an appeal may be disposed of on very many grounds the Legislature has thought it fit to provide in the Explanation that only when an appeal against an ex-parte decree is disposed of on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of an application under order 9, rule 13 of the Code for setting aside the ex-parte decree will not apply. The Legislature must be presumed to know that there are various ways of disposal of an appeal. The Legislature has, however, thought it fit to provide that when an appeal has been preferred against an ex-parte decree, the disposal of the appeal on any ground excepting the solitary ground of disposal of the appeal by withdrawal of the same by the appellant, will create a bar to the maintainability of an application under Order 9, rule 13 of the Code of Civil Procedure. By specifically providing in the Explanation that the disposal of any appeal from the ex- parte decree on any ground other than the solitary ground of withdrawal of the appeal by the appellant, the legislative intent is made manifestly clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commencement of the period of limitation in respect of a decree passed by the Trial Court, affirmed by the High Court on appeal and a further appeal therefrom to the Privy Council was dismissed by the Privy Council for non- prosecution of the appeal. The appellant before the Privy Council was in the position of a mortgagor and the Respondents of mortgagees under a mortgage dated 3rd September, 1868. In 1889 a suit was commenced before the Subordinate Judge of Allahabad to enforce that mortgage and on the 12th May, 1890, a decree was passed by him for the sale of the property unless payment was made on or before the 12th August, 1890. An appeal was brought from that decree to the High Court and on the 8th April, 1893 that appeal was dismissed and the decree of the Subordinate Judge was confirmed. The mortgagor obtained leave to appeal to the Judicial Committee but did not prosecute his appeal; and on the 13th May, 1901, the appeal was dismissed for want of prosecution. The Mortgagor decree-holder made an application to the Subordinate Judge on the 11th June, 1909 for an order absolute to sell the mortgaged properties; it appears that an order had been 'made on the said applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1918 against several defendants, among whom the appellant before the High Court was No. 4. Two of the defendants contested the suit and on 22.9.1919 a preliminary decree from partition was made on contest against two of the defendants and ex-parte against the others. The appellant did not appear at all in the first Court and he was one of the defendants against whom the decree was made ex-parte. On 17.12.1919 the first defendant alone preferred an appeal against the decree to the High Court and on 20.12.1919 the appellant presented an application to the Trial Court under order 9, rule 13 of the Code of Civil Procedure. This application was kept pending until after the disposal of the appeal preferred by the first defendant. One of the respondents in the appeal filed by the first defendant died and as the appellant did not take proper steps to bring the heirs on the record, the appeal was dismissed as against them and then against the others it was held that in the absence of the heirs of the deceased respondent the appeal could not proceed and the appeal was accordingly dismissed on 5th January 1922. Thereafter the application of the appellant under 9, rule 13 of Code of Civil Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er did or did not amount to a decree. What . is of importance is that it was not a decree in which that of the lower Court was merged: Mukherjee, J., the other learned Judge on the Bench observed at p. 834 : Now the consideration of the question as to whether the learned Subordinate Judge had jurisdiction to pass the order of the 8th April, 1922 involves a consideration of the following questions (a) whether the order of this Court passed on the 5th January 1922, amounted to a decree or not, (b) if it was a decree, whether the ex-parte decree can be held to have a merged into it, (c) whether the learned Subordinate Judge had jurisdiction to set aside the ex-parte decree and restore the suit, and (d) whether his successor could declare or was right in declaring the aforesaid order a nullity. As to (a): The definition of the word 'decree' in the Code of Civil Procedure, in so far as it purports to be a definition at all, lays down the following essential and distinguishing elements viz., that the decision must have been expressed in a suit, that the decision must have been passed on the rights of the parties with regard lo all or any of the matters in controversy i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly proceeded on the basis of merger of the decree passed by the Trial Court with the decree of the Appellate Court. The words used in Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal on merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of the appeal. The Explanation speaks of the appeal has been disposed of on any ground other then the ground that the appellant has withdrawn the appeal and these words make it abundantly clear that disposal of the appeal may be on any ground and the withdrawal of on appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal, and, the disposal of the appeal from the ex-parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation. If the intention was that the Explanation would not be attracted and there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decree of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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