VidhiSangh

Supreme Court of India · 07/05/2019

BHIVCHANDRA SHANKAR MORE versus BALU GANGARAM MORE & ORS.

[2019] 7 S.C.R. 298 · 2019 INSC 643

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Summary

Delay in appealing an ex parte partition decree was condoned after the defendants pursued an Order IX Rule 13 application and an appeal from its rejection. Those remedies have a different scope from a merits appeal under Section 96(2), and their prior pursuit did not bar that statutory appeal. Consecutive remedies are not invariably impermissible; bona fides and dilatory conduct must be assessed. On these facts, the time spent supplied sufficient cause and the merits appeal was restored.

Issues

  1. Whether rejection of an Order IX Rule 13 application barred a later merits appeal against the ex parte decree.
  2. Whether time spent pursuing that remedy supplied sufficient cause for condoning the appeal delay.

Held

Result

Appeal allowed. High Court judgment set aside; delay in the first appeal against the ex parte partition decree condoned and that appeal restored. First appellate court to decide it according to law. No opinion expressed on substantive merits.

Judgment PDF: Supreme Court of India, [2019] 7 S.C.R. 298.