Summary
The Supreme Court held that an appeal under Order XLIII Rule 1(d), rather than a Section 115 revision, lay where refusal to condone delay also resulted in dismissal of an Order IX Rule 13 application. It set aside the High Court’s order in the incompetent revision, while permitting an appeal by a specified deadline without a limitation objection.
Issues
- Whether revision lay against dismissal of a delayed application to set aside an ex parte decree when a statutory appeal was available.
Provisions considered
- Order IX Rule 13 and Order XLIII Rule 1(d), Code of Civil Procedure, 1908Dismissal of the delay-condonation application consequentially dismissed the setting-aside petition, attracting the express appellate remedy. (¶¶ 10, 11, 15, 18)
- Section 115(1)–(2), Code of Civil Procedure, 1908Availability of an appeal precluded revision; the High Court order in the revision could not stand. (¶¶ 11, 16, 17, 20)
- Section 96(2) and Explanation to Order IX Rule 13, Code of Civil Procedure, 1908The Court explained concurrent remedies against an ex parte decree and the effect of disposal of an appeal on a setting-aside application. (¶ 12–14)
Held
- Where refusal to condone delay results in dismissal of the Order IX Rule 13 petition itself, an appeal lies under Order XLIII Rule 1(d). The appealable refusal cannot be challenged through Section 115 revision. An order allowing the setting-aside application is not appealable under that provision. (¶¶ 10, 11, 15–18)
- A defendant may pursue an appeal against the ex parte decree and an Order IX Rule 13 application concurrently. Disposal of the decree appeal, other than by withdrawal, bars the setting-aside remedy; rejection of the setting-aside application does not conversely bar the decree appeal. (¶ 12–14)
- The High Court’s decision was set aside for want of a maintainable revision, without deciding whether the lengthy delay should be condoned. Liberty was reserved to file the statutory appeal by 31 December 2023, with limitation not to be raised if filed as permitted. All merits contentions remained open. (¶ 19–24)
Result
Appeal allowed; High Court revision order set aside. First respondent permitted to file an Order XLIII Rule 1(d) appeal by 31 December 2023 without a limitation objection, for disposal in accordance with law. All contentions left open; no costs; pending applications disposed of.