The Tax Publishers 2020 TaxPub(CL) 0126 (SC)

CODE OF CIVIL PROCEDURE, 1908

Section 96

Where appellant was seeking condonation of delay of 546 days in filing the first appeal by contending that time spent in proceedings to set aside the ex-parte decree was 'sufficient cause', it was held that an appeal under section 96(2) of CPC is a statutory right, and defendant cannot be deprived of the statutory right merely on ground that earlier application filed under Order IX, Rule 13 CPC was dismissed.

Appeal from original decree - Original decree passed ex parte - Condonation of delay of 546 days in filing first appeal - Time spent in proceedings to set aside ex parte decree, whether a sufficient cause for condonation of delay

Appellant was doing business of tea and real estate. Case of respondent was that appellant approached for financial assistance and borrowed money for business needs. Appellant did not pay the amount. Appellant issued post-dated cheques to respondent, but when cheques were presented for collection, same were returned with endorsement that 'payments stopped by the drawer'. Respondent filed a civil suit and said suit was decreed ex-parte. Appellant was seeking condonation of delay of 546 days in filing the first appeal by contending that time spent in proceedings to set aside the ex-parte decree was 'sufficient cause' within the meaning of section 5 of the Limitation Act, 1908. Held: An appeal under section 96(2) CPC is a statutory right, and defendant cannot be deprived of the statutory right merely on ground that earlier, application filed under Order IX Rule 13 CPC was dismissed. Where defendant has been pursuing the remedy bona fide under Order IX, Rule 13 CPC, if the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX, Rule 13 CPC, the defendant would be deprived of the statutory right of appeal. When defendant filed appeal under section 96(2) of CPC against an ex-parte decree and if said appeal had been dismissed, thereafter, defendant could not file an application under Order IX, Rule 13 CPC. This was because after the appeal filed under section 96(2) of the Code was dismissed, original decree passed in the suit merged with the decree of appellate court. Thus, after dismissal of the appeal filed under section 96(2) of CPC, the appellant could not fall back upon remedy under Order IX, Rule 13 CPC. The delay of 546 days in filing the first appeal shall, therefore, be condoned with condition that the appellant should deposit Rs. 20,00,000 before Trial court.

REFERRED : Bhivchandra Shankar More v. Balu Gangaram More & Ors. (2019) 6 SCC 387 Neerja Realtors (P) Ltd. v. Janglu (dead) thr. L.R. (2018) 2 SCC 649 Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors. (2008) 7 SCC 663 Bhanu Kumar Jain v. Archana Kumar & Anr. (2005) 1 SCC 787 Shyam Sundar Sarma v. Pannalal Jaiswal (2005) 1 SCC 436 Deepal Girishbhai Soni & Ors. v. United India Insurance Co. Ltd. (2004) 5 SCC 385 : 2004 TaxPub(CL) 0407 (SC) Rani Choudhury v. LT. Col. Suraj Jit Choudhury (1982) 2 SCC 596

FAVOUR : In favour of appellant

A.Y. :



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