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Statutory Appeal Can Be Filed Even With The Setting Aside Of Ex-Parte Decree Is Dismissed.
In the case of Bhivchandra Shankar More vs. Balu Gangaram More , Hon’ble Justice R. Bhanumathi and Hon’ble Justice Subhash Reddy, dealt with two major issues. Firstly, whether the time spent in the proceedings taken to set aside the ex-parte decree constitute “sufficient cause” within the meaning of Section 5 of the Indian Limitation Act, 1908 so as to condone the delay in preferring an appeal against the ex-parte decree on merits? Secondly, whenan application filed under Order IX Rule 13 CPC has been dismissed on merits, whether regular appeal under Section 96(2) CPC is barred?
With regard to these two issues, the Court took on to distinguish between the two provisions of Order IX Rule 13 of the CPC and Section 96(2) of the CPC. For an application filed under Order IX Rule 13 of the CPC, the Court has to determine whether the summons were duly served or whether the defendant was prevented by a sufficient cause, from appearing to the hearing of the suit. If the Court is convinced that the summons was not duly served or that there was a sufficient cause, the court may set aside the ex-parte decree and restore the suit to its original position.
The second observation of the Court was that, just because the remedy was pursued under Order IX Rule 13 of the CPC, does not prohibit the defendant to file the appeal if the petition is dismissed. Under Section 96(2), the right of appeal is a statutory appeal, and the defendant cannot be deprived of this right on the ground that the application under Order IX Rule 13 has been dismissed.
On the observation of the High Court that,the remedies provided as simultaneous and cannot be converted into consecutive remedies cannot be applied in a very rigid manner. It would depend on the facts of the case. And, only in cases where the where the defendant has adopted dilatory tactics or there is a lack of bonafide, the Court may deny in filing the appeal. Lastly, the interpretation of the term ‘sufficient cause’, should be liberal in outlook.
Thus, in the said case the Hon’ble Supreme Court held that, right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal on the mere ground that the application filed by him under Order IX Rule 13 CPC has been dismissed.
