Right of appeal is a statutory right which cannot be dismissed merely on the ground that the application filed by applicant under Order IX Rule 13 was dismissed.

Srishti Sneha | Symbiosis Law School, Hyderabad | 22nd November 2019

N. Mohan v. R. Madhu., Civil Appeal No. 8898 of 2019

FACTS

The appellants in the instant case were defendants in the original suit.  It was alleged that the defendant-appellants borrowed a sum of Rs 45,00,000 from the plaintiffs-respondent. There was no documentation to this effect. The respondent further alleged that this amount was to be returned within two months with an interest of 18% per annum. It was also the case of the respondents that the appellants had issued two post dated cheques of amount Rs 25,00,000 and 20,00,000 , which the respondent had present to his bank for collection. The cheques were returned with the endorsement, “payment stopped by the drawer”. An ex-parte decree was passed by the trial court in favor of the respondents. The appellants thereafter filed an Interim Application under section 5 of the Limitation Act for condonation of delay of 276 days in filing of a petition under Order IX  Rule 13. The main contention of the appellant in this application was that the summons were sent to his old address in Trichy, and hence the summons remained unserved. This application was rejected by the Trial Court, High Court and Supreme Court (by the way of SLP). The appellants then filed an appeal under Section 96(2) Civil Procedure Code and also filed an application for condonation of delay of 546 days. This appeal was rejected High Court.

ISSUES

Whether post dismissal of application filed under Order IX Rule 13 CPC for condonation of delay in filing appeal, a subsequent appeal under Section 96 (2) CPC against the ex-parte decree is maintainable?

Whether the time spent in proceedings to set aside the ex-parte decree comes under the ambit of “sufficient cause” within the meaning of Section 5 of Limitation Act 1908?

HELD

Here the court observed that the right of appeal is a statutory right which cannot be dismissed merely on the ground that the application filed by him under Order IX Rule 13 was dismissed. The court has to take into account facts and circumstances of each case in order to ascertain if the subsequent appeal was made with bona fide intention or was dilatory tactic. In case of the former, the court may admit such appeal, and in case of the latter, it may dismiss the appeal and refuse to condone the delay in for time spent in pursuance of application under Order IX Rule 13.

However, the court also pointed out that where a party files an appeal under section 96(2) against an ex-parte decree and is such appeal is dismissed by the court, then an application cannot be subsequently filed under Order IX Rule 13. This in essence is because, once an appeal is dismissed by a higher court, the judgment of the lower court gets merged with the one given by the higher court. Therefore, once an appeal filed under 96(2) is dismissed then the appellant cannot rely upon Order IX Rule 13 of CPC.

In the instant case court held that the appellants had shown his bona fide intention by depositing 25 lakhs in accordance with the order of the court. The court condoned the delay on the condition that the appellants must further deposit an amount of Rs 20 lakh.