The highest court of record has observed that a defendant cannot be deprived of the statutory right to appeal under Section 96(2) of the Code of Civil Procedure merely on the ground that earlier, the application filed under Order IX Rule 13 CPC was dismissed.
In the present matter the bench of Justice R. Bhanumathi, Justice AS Bopanna and Justice Hrishikesh Roy said that the application under Order IX Rule 13 CPC cannot be filed after dismissal of appeal under Section 96(2) CPC.
The court referred to its two earlier judgments in this regard i.e. Bhanu Kumar Jain v. Archana Kumar (2005) ISCC787 and Neerja Realtors(P) Ltd. V. Janglu (Dead) to decide the present matter.
The issue raised in the case was whether the time spent in the proceedings to set aside the ex-parte decree be taken as “sufficient cause” within the meaning of Section 5 of the Limitation Act, 1908 so as to condone the delay in preferring the first appeal. The bench noted that the question whether the defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing the remedy of appeal under Section 96(2) of the Code, has to be considered depending upon the facts and circumstances of each case.
The highest court of record further observed that when the defendant filed appeal under Section 96(2) CPC against an ex-parte decree and if the said appeal is dismissed, thereafter, the defendant cannot file an application under Order IX Rule 13 CPC. The Court explained:
“This is because after the appeal filed under Section 96(2) of the code has been dismissed , the original decree passed in the suit merges with the decree of the appellate court.”