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2016 DIGILAW 269 (ORI)

Narayan Pradhan v. Dhruba Charan Pradhan

2016-04-06

D.DASH

body2016
JUDGMENT : 1. This appeal has been filed calling in question the order dated 10.9.2012 passed by the learned Addl. District Judge, Jagatsinghpur in RFA No. 28 of 2010. 2. Facts necessary for disposal of this appeal are that the respondent no.1 as the plaintiff had filed the suit i.e. Title Suit No. 115 of 2002 for partition. The suit having been preliminary decreed entitling the plaintiff with the land measuring Ac.0.18 decimals from out of the suit land, these appellants filed an application under Order 9 Rule 13 of the Cr.P.C. for setting aside the said ex parte judgment and preliminary decree passed against them which came to be registered as CMA No. 36 of 2008. The trial court came to a conclusion that the suit has been disposed of on contest against the defendants with cost and thus holding the petition under Order 9 Rule 13 of Code to be not maintainable, the same was dismissed. This order of dismissal was passed on 15.4.2010. The appellants then filed an appeal against the judgment and decree passed in the suit along with an application under Section 5 read with Section 14 of the Limitation Act. The same came to be heard by the learned Addl. District Judge, Jagatsinghpur. When the matter came up for consideration of that application under Section 5 read with 14 of the Limitation Act, the lower appellate court straightway in view of the explanation to Order 9 Rule 13 of the Code went on to hold the appeal as not maintainable and therefore did not feel it proper to decide the fate of the application under Section 5 read with Section 14 of the Limitation Act on merit. 3. The appeal has been admitted on the following substantial question of law:- “Whether the lower appellate court has erred in law by holding that since the appellants have availed remedy under Order 9 Rule 13 of the Code of Civil Procedure, the appeal against ex parte decree is not maintainable:” 4. Heard the learned counsel or the parties. Perused the order impugned in this appeal. 5. Heard the learned counsel or the parties. Perused the order impugned in this appeal. 5. The explanation to Order 9 Rule 13 of the Code added by the Code of Civil Procedure (Amendment) Act, 1976 which came into force w.e.f 1.2.1977, reads as under:- xxx xxx xxx xxx xxx xxx xxx “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.” In the case of Shyam Sundar Sarma v Pannalal Jiswal and others, AIR 2005 SC 226 , it has been held that when the appeal filed prior to the filing of application under Order 9 R.13 of the Code and it has been dismissed may be as time bared, the explanation to Order 9 R.13 of the Code applies as even the dismissal of the appeal for default or as time barred which are never the less decisions in appeal and those cannot be equated with the withdrawal of the appeal as excepted under the explanation to Order 9 Rule 13 of the Code. 6. It is submitted by the learned counsel for the appellants that on the date, the petition under Order 9 Rule 13 of the Code was filed, no appeal against the decree being filed, such was not on the board; thus the bar created by the above explanation has no application to the case, since it is only provided that a petition under Order 9 Rule 13 of the Code would not be entertained only in a case where the ex parte decree was already subjected to an appeal. In the case in hand, after dismissal of the application under Order 9 Rule 13 of the Code of Civil Procedure, the appeal has been filed. In the case in hand, after dismissal of the application under Order 9 Rule 13 of the Code of Civil Procedure, the appeal has been filed. The very purpose and objective behind the insertion of the Explanation is that it is to obviate the situation that where an ex parte decree being passed and it having been called in question in appeal and that appeal having been disposed of on merit or even otherwise except being withdrawn which obviously means that the appellant did so intending not to invoke the appellate jurisdiction when brings a merger of the decree of trial court in that of the appellate court, the trial court would have no further jurisdiction to set aside the ex parte decree passed by it, the same having lost its independent identity having merged with the decree of the appellate court. In other words the explanation is thus to obviate the situation that in that event, it would amount to sit over the decree of the superior court which is not permissible. 7. A bare reading of the last paragraph of the order of the lower appellate court clearly goes to show that the bar created by Explanation to Order 9 Rule 13 of the Code though not stand in the way of the appeal filed before, it has been erroneously so applied in holding the appeal in hand filed later to be not maintainable. The above referred decision cited therein, has not even been read with its fact situation though just so mentioned in the order for that sake of loading the order to give such an idea to its readers. At this juncture, it gives me the pain to state that the learned Additional District Judge as is seen has disposed of the appeal by throwing the provisions of law to winds. He has not even taken the slightest pain of going through the decision of the Apex Court very much cited before it or even giving a reading to the bare provision of law. A bare reading of the order exposes the understanding of law much less to say their application to the factual setting of the case which no doubt reveals a sorry state. In that view of the matter, the order dated 10.9.2012 is held unsustainable in the eye of law and thus is liable to be set aside. 8. A bare reading of the order exposes the understanding of law much less to say their application to the factual setting of the case which no doubt reveals a sorry state. In that view of the matter, the order dated 10.9.2012 is held unsustainable in the eye of law and thus is liable to be set aside. 8. Resultantly, the appeal stands allowed as above and in the facts and circumstances without cost. The impugned order being set aside, the appeal is now remitted to the lower appellate court to first consider the petition under Section 5 read with Section 14 of the Limitation Act for condonation of delay in filing the appeal on its own merit and dispose of the same in accordance with law so as to accordingly proceed further in the matter. Viewing the age of litigation, in order to arrest the delay, the parties are directed to appear before the lower appellate court on 25.04.2016 to receive further instruction in the matter and enable the lower appellate court to proceed with the matter as above with expediency. It now be clarified that whatever have been discussed and expressed herein above should not be taken as any expression on the merit of the issue standing for decision by the lower appellate court and those remain confined only for the purpose of demonstrating as to how the impugned order is unsustainable in law. Registry is directed to forward copy of this order to all the District Judges of the State for onward circulation of the same among all the Judicial Officers in their respective judgeship for reference. A copy of the order be also sent to the concerned Judicial Officer who had passed the impugned order in order to bring it to his notice and for future reference.