Summary
An order rejecting restoration of a default-dismissed Order IX Rule 13 application was appealable under Order XLIII Rule 1(c), because the restoration proceeding was referable to Order IX Rule 9. Section 141 supplied procedural application, not an independent appeal right. The Court also accepted sufficient cause for any delay and restored the appellate remand.
Issues
- Whether refusal to restore the default-dismissed ex-parte-decree application was appealable.
- Whether delay justified rejecting the restoration request.
Provisions considered
- Section 141; Order IX, Rules 9 and 13; Order XLIII, Rule 1(c) and (d), Code of Civil Procedure, 1908The procedural scheme applies Order IX to the restoration proceeding and supplies an express appeal against its rejection. (¶¶ 18–29, 41–44, 57–58)
Held
- Rejection for default is not excluded from the statutory appeal language. The later request to restore the Order IX Rule 13 proceeding was itself referable to Rule 9, so rejection attracted Order XLIII Rule 1(c). Contrary reasoning that the second restoration application could never be appealable was disapproved. (¶¶ 20–23, 36–44, 57–58)
- Appeal is a substantive statutory right; the Court did not infer it from Section 141 alone but from the express appeal provision applicable to the Rule 9 order. (¶¶ 38, 58)
- It was unnecessary to choose between the disputed 30-day and three-year limitation periods. Even on the shorter assumption, the illness, death and heirs’ lack of knowledge supplied sufficient cause under Section 5 for any delay. (¶ 59–62)
Result
Appeal allowed; High Court judgment set aside and District Judge’s restoration/remand order revived. Trial court directed to decide the Order IX Rule 13 application within three months of production of the order.