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
- Whether rejection of an Order IX Rule 13 application barred a later merits appeal against the ex parte decree.
- Whether time spent pursuing that remedy supplied sufficient cause for condoning the appeal delay.
Held
- Order IX Rule 13 concerns due service and sufficient cause for non-appearance; Section 96(2) permits a merits challenge to the decree. Failure under the former does not extinguish the statutory right under the latter, though grounds concerning the already-decided non-appearance question cannot simply be reopened. (¶ 10–12)
- The remedies need not invariably be pursued simultaneously. Consecutive pursuit must be examined on the particular facts, and delay may be refused where the course reflects dilatory tactics or lack of bona fides. (¶ 13–16)
- Here the defendants pursued the setting-aside remedy and its appeal, then filed the decree appeal the day after withdrawing that appeal. Gross negligence was not established, particularly in the context of a partition preliminary decree whose correctness otherwise could not be challenged at the final-decree stage. (¶ 17–18)
- The time spent in those proceedings constituted sufficient cause in these circumstances. Condonation allowed a merits adjudication without expressing any view on the partition dispute itself. (¶ 19–20)
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.