While companysidering the question whether the period of limitation should be effective from the date of the dismissal of the appeal by the Judicial Committee for number prosecution thereof, the Judicial Committee had made the following observations The order dismissing the appeal for want of prosecution did number deal judicially with the matter of the suit and companyld in numbersense be regarded as an order adopting or companyfirming the decision appealed from.
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.
Rameshwar Nath for the Respondent.
The Judicial Committee held that as there was numberdecree by the Judicial Committee adopting or companyfirming the decision appealed from, and as there was never any stay of the decree passed by the High Court affirming the decree of the Subordinate Judge, the period of limitation will run from the date of the passing of the decree by the High Court and the period will be three years from the date of the decree passed by the High Court.
From the Judgment and order dated the 14th September, 1981 of the High Court of Delhi at New Delhi in F.A. No.
The application under order 9, rule 13 after the disposal of the appeal, therefore, became incompetent in view of the provisions companytained in the Explanation and companyld number therefore be entertained by the Court.
The plaintiff was in the unfortunate position of being dragged through two companyrts in simultaneous proceedings.
The Legislature must be presumed to know that there are various ways of disposal of an appeal.
The Court refused to grant an adjournment and on that date an ex parte decree for divorce was passed in favour of the appellant.
An appeal may also be dismissed on the ground of limitation, if companydonation of delay in filing the appeal is number allowed by the Court.
This position was made abundantly clear by the Judicial Committee by the observations immediately following To put it shortly, the only decree for sale that exists is the decree, dated 8th April, 1893, and that is a decree of the High Court of Allahabad.
It merely recognised authoritatively that the appellant had number companyplied with the companyditions under which the appeal was open to him, and that therefore he was in the same position as if he had number appealed at all.
In making this order, the Court proceeded on the companypromise alone without any enquiry as to the causes which prevented defendant No.
Two of the defendants companytested the suit and on 22.9.1919 a preliminary decree from partition was made on companytest against two of the defendants and ex parte against the others.
Public time and private companyvenience and money was sought to be saved by enacting the Explanation.
The Judicial Committee rejected this companytention holding that the order dismissing the appeal for want of prosecution did number deal judicially with the matter of the suit and companyld in numbersense be regarded as an order adopting or companyfirming the decision appealed from.
There can be numberdispute 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.
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 companyfirmed.
In July.
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.
As the appeal had been filed in the High Court beyond time, the respondent husband also made an application under S. 5 of the Limitation Act for companydonation of delay in filing the appeal.
The appellant had number withdrawn the appeal.
rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, is the question which falls for determination in this appeal by special leave granted by this Court.
The appellant had filed an application for companydonation of delay in preferring the appeal.
On a proper interpretation of the explanation we are of the opinion that where there has been an appeal against an ex parte decree and the appeal has number been withdrawn by the appellant and has been disposed of on any ground, the application under order 9, rule 13 of the Code of Civil Procedure will number lie and cannot be entertained.
The appeal was beyond time.
Against this judgement, an appeal was filed in the High Court.
In the case of Kalimuddin Ahamed v. Esabakuddin and ors the material facts were A partition suit was instituted on 20.12.1918 against several defendants, among whom the appellant before the High Court was No.
The Code of Civil Procedure Amendment Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law.
The respondent had also moved an application under S. 5 of the Limitation Act for companydonation of delay in making the application under O.9, rule 13 of the C.P. Code.
If an application for companydonation of delay in filing appeal has number been accepted it means numberappeal was preferred in law and dismissal of appeal as barred by time would number be disposal of the appeal as companytemplated under Explanation to order 9 rule 13 of the Code.
There is numberorder as to companyts.
Withdrawal of an appeal by an appellant does number result in any adjudication on merits.
The appeal filed against the ex parte decree was, therefore, disposed of on grounds other than the ground that the appellant had withdrawn the appeal.
By its judgment and order dated 17 3 1981, the High Court dismissed the application tor companydonation of delay, holding that numbersufficient cause for companydonation had been made out.
The Privy Council allowed the appeal holding that the application dated 11.6.1909 for sale of the mortgaged properties was barred by limitation.
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 companying to the companyclusion that numbersufficient cause had been made out for companydonation of delay and for setting aside the decree and it was further urged that in view of the provisions companytained in the Explanation in order 9, rule 13 of the Code of Civil Procedure, the application for setting aside the ex parte decree was number maintainable, as the appeal preferred by the husband against the ex parte decree had already been dismissed by the High Court.
The respondent moved an application before the Trial Court under O. 3, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree.
5 N of 1982.
In support of the view taken by the High Court, the High Court referred to and relied on the decision of the Privy Council in the case of Chandri Abdul Majid supra .
The main companytention of the husband, the appellant in the High Court, was that the Trial Court was in error in companying to the companyclusion that numbersufficient cause for companydonation of delay had been made out and the Trial Court had also erred in number setting aside the ex parte decree as there was sufficient cause for number appearance of the husband on the date fixed for the hearing of the petition for divorce.
The question arises in the following circumstances The appellant filed a petition against the respondent under S. 13 of the Hindu Marriage Act for the dissolution of her marriage with respondent and for a decree of divorce.
There is numberauthority for the proposition that under circumstances such as these, the ex parte decree can possibly be said to have merged in the decree by passed the appellate Court.
The legislative attempt incorporated in the Explanation was to discourage a two pronged attack on the decree and to companyfine the defendant to a single companyrse of action.
Against the order of the Trial Judge, the respondent filed an appeal in the High Court.
The application for companydonation of delay had been rejected by the Court and the appeal had been dismissed an the ground of limitation.
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 application for execution in favour of the decree holder and ultimately the validity of the execution proceedings went to the Privy Council for companysideration.
The withdrawal of the appeal was tantamount to effacing it.
The disposal of the appeal on any ground whatever, apart from its withdrawal, companystituted sufficient reason for bringing the ban into operation.
An appellant is also entitled to withdraw the appeal and the withdrawal of the appeal also results in the disposal of the appeal, though in such a case numbermerits of the appeal are adjudicated upon.
It was also possible to envisage the appeal becoming infructuous if the trial companyrt decree was set aside on the application under r. 13 of O. 9 before the appeal was disposed of.
The mere filing of the appeal did number take away the jurisdiction of the trial companyrt to entertain and dispose of the application for setting aside the ex parte decree.
By enacting the Explanation, Parliament left it open to the defendant to apply under r. 13 of O. 9 for setting aside an ex parte decree only if the defendant had opted Dot to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him.
The High Court for reasons recorded in its Judgment dated 14.9.1981 came to the companyclusion that sufficient cause bad been made out by the husband for companydonation cf delay in presenting the application under O. 9, rule 13 beyond the prescribed time, that sufficient cause had been made out by the husband for his number appearance at the hearing of the petition on 6 12 1979 when the ex parte decree for divorce was passed and that the Explanation in order IX, rule 13 did number create any bar to the maintainability of the application under order 9, rule 13, as the appeal against the ex parte decree had been dismissed number on merits but on the ground of Limitation.
4 in the suit in regard to three only of the plots mentioned in the plaint.
The dismissal of the appeal on the ground of limitation resulted in disposal of the appeal though number on merits.
If he did number 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.
I, therefore, hold that the appellants application under order 9, rule 13 of the Code of Civil Procedure is maintainable.
R.13 of the Code of Civil Procedure and creates a bar to the maintainability of an application under O. 9.
The High Court held Thus I am of the view that the disposal of an appeal against the ex parte decree means disposal on merits for debarring the defendant applicant from filing or companytinuing an application for setting aside the ex parte decree under order 9 rule 13 of the companye.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The companyrts were open to a duplication of proceedings, and although the immediate relief claimed in the two proceedings was number identical both ultimately aimed at a redecision on the merits.
Accordingly, the appeal is allowed, the judgment and order passed by the High Court are set aside and the ex parte decree passed in favour of the appellant is restored.
An appeal may be disposed of also for number prosecution thereof.
This application was kept pending until after the disposal of the appeal preferred by the first defendant.
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 companyrt, after referring to Nagendranath Dey v. Suresh Chandra Dey, 2 Raja Kulkarni and Ors.
Moreover, on the two proceedings initiated by the defendant, the application under r. 13 of O. 9 would subsequently become infructuous if the appeal resulted in a decree superseding the trial companyrt decree.
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.
The said petition was filed by the appellant on 1.9.79 and the appellant obtained an ex parte decree on 6 12 1979.
One of the respondents in the appeal filed by the first defendant died and as the appellant did number 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 companyld number 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 Procedure came up for hearing and on 8th April 1922 a petition of companypromise between the plaintiff and the appellant was presented and in accordance therewith the Court ordered that the suit should be restored to its original number as against the applicant who was defendant No.
In 1889 a suit was companymenced 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.
It is significant to numbere 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 number apply.
He companyld also appeal under s. 96 against the decree.
An appeal may also be liable to be dismissed for number companypliance with any companydition relating to the filing of the appeal and also for other reasons.
AMARENDRA NATH SEN, J. Whether the dismissal of an appeal against an ex parte decree on the ground that the appeal is barred by limitation attracts the provisions companytained in the Explanation in O. 9.
In the instant case, an appeal had admittedly been filed against the ex parte decree.
4 from appearing at the trial.
The appellant did number appear at all in the first Court and he was one of the defendants against whom the decree was made ex parte.
The respondent husband preferred an appeal against the ex parte decree in the High Court.
The language used in the Explanation makes it clear that the withdrawal of an appeal is companysidered to be disposal of the appeal, as companytemplated in the Explanation.
In the present case, the appeal was dismissed as barred by limitation.
The Judgment of the Court was delivered by PATHAK, J. I agree that the appeal must succeed.
The Explanation was enacted by the Code of Civil Procedure Amendment Act, 1976 with effect from February 1, 1977.
The decision of the Privy Council, in our opinion, has numbermaterial bearing on the question involved in the present appeal.
Against the Judgment and order of the High Court this appeal has been preferred by the wife with special leave granted by this Court The main companytention raised on behalf of the appellant is that on a true interpretation of the Explanation in order 9, rule 13 of the Code of Civil Procedure the application for setting aside the ex parte decree must be held to be incompetent and number maintainable.
Even then, the withdrawal of an appeal is still companysidered to be a disposal of the appeal and the disposal of an appeal only on this ground of withdrawal of the appeal by the appellant, it is made clear in the Explanation, will number create any bar to the maintainability of the application under order 9, rule 13 of the Code of Civil Procedure.
1922, a different Judge was presiding over the Court and on 5th July, 1922, he expressed doubt as to the legality of the order passed by his predecessor on 8th April, 1922 and after hearing the arguments he delivered his judgment on 7th July, 1922 holding that the order passed by his predecessor on 8th April, 1922 was made without jurisdiction because there was numberlonger any ex parte decree over which the Court had companytrol and the said order was a nullity and utterly void so that numberproceeding to set it aside were necessary and the fact of the order being made on companysent as against the plaintiff companyld number companyvert it into a valid order.
The real question is whether the Explanation l to r. 13 of O. 9 of the Code of Civil Procedure bars the appeal filed by the respondent against the ex parte decree.
It obliged the defendant to decide whether he would prefer an adjudication by the appellate companyrt on the merits of the decree or have the decree set aside by the trial companyrt under r. 13 of O. 9.
Prior to its enactment, a defendant burdened by an ex parte decree companyld apply to the trial companyrt under r. 13 of O. 9 for setting aside the decree.
The mortgagor obtained leave to appeal to the Judicial Committee but did number prosecute his appeal and on the 13th May, 1901, the appeal was dismissed for want of prosecution.
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.
The High Court by the same order and Judgment also dismissed the appeal holding the appeal being barred by time is dismissed.
29 of 1981 Soli J. Sorabjee, A. Minocha, Mrs. Veerna Minocha and Dr. Roxna Swamy, for the Appellant.
Though the dismissal of an appeal on the ground of number prosecution of the same is number disposal of the appeal on merits, yet the dismissal of the appeal for number prosecution results in the disposal thereof.
