Right to file Regular Appeal cannot be curtailed merely because application to set aside Ex-parte order

-Zaynali Badami

The Supreme Court on Thursday emphasised that the statutory right of bid won’t be smothered distinctly by virtue of expulsion of an application to put aside an ex-parte order under Order IX, Rule 13 of the Code of Civil Procedure (CPC).

Permitting an intrigue documented against a Madras High Court judgment, the Bench of Justices R Banumathi, AS Bopanna and Hrishikesh Roy watched, “An appeal under Section 96(2) CPC is a statutory right, the defendant cannot be deprived of the statutory right merely on the ground that earlier, the application filed under Order IX Rule 13 CPC was dismissed.”

However, the Bench added,

“When the defendant filed an appeal under Section 96(2) CPC against an ex-parte decree and if the said appeal has been dismissed, thereafter, the defendant cannot file an application under Order IX Rule 13 CPC. This is because after the appeal filed under Section 96(2) of the Code has been dismissed, the original decree passed in the suit merges with the decree of the appellate court. Hence, after the dismissal of the appeal filed under Section 96(2) CPC, the appellant cannot fall back upon the remedy under Order IX Rule 13 CPC.”

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For the situation under the steady gaze of the Court, an unfavourable ex-parte administering had been passed against the appealing party in 2015 of every cash suit. In the said suit, the litigant was the respondent. He guaranteed that he just got mindful of the lawful procedures a lot after the suit was proclaimed ex-parte for his rival as the request was sent to an obsolete location at Trichy (while the litigant had been living in Chennai for more than five years).

The appealing party, along these lines, recorded an application under Order IX, Rule 13 of the CPC to put aside the ex-parte order, contending that he had adequate reason clarifying his non-appearance in the issue. This application, recorded with a postponement of 276 days, was anyway rejected by the preliminary court. The expulsion was maintained by the High Court and the Supreme Court.

From there on, the litigant documented an intrigue testing the announcement itself under Section 96(2) of the CPC. Be that as it may, this intrigue was additionally not engaged by the High Court, in perspective on the way that the appealing party made similar entries with respect to the explanations behind belatedly moving toward the Court. Further, with the expansion of the postponement in documenting the Order IX Rule 13 application, the litigant had recorded the intrigue after a combined deferral of 546 days. The High Court’s rejection of this intrigue prompted further intrigue under the steady gaze of the Supreme Court.

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The Supreme Court, thusly, observed that by and large, a defendant against whom an unfriendly ex-parte order is passed, has two lawful choices before him; first, to record an application under Order IX Rule 13 CPC, and second, to document an intrigue under Section 96(2) CPC. The Court continued to see that the inquiry which emerges then is whether the two alternatives are to be practised at the same time or can likewise be practised continuously?

While it was comprehended that the two choices can be practised at the same time, the Court saw that whether they can be benefited successively would rely upon the bona fide of the defendant. As clarified in the judgment,

“A corrupt defendant may, obviously, right off the batting record an application under Order IX Rule 13 CPC and convey the issue up to the most noteworthy discussion; from there on may pick to document bid under Section 96(2) CPC testing the ex-parte order. In that occasion, impressive time would be lost for the offended party. The inquiry succumbing to thought is that whether the cures gave as concurrent can be changed over into sequential cures.”

The Court continued to hold that when the prosecutor has acted in a bona fide way, and not in a way demonstrating that he is benefiting the two cures sequentially just to draw out defendant to his adversary’s hindrance, the two cures might be summoned successively. In this manner, regardless of whether the two cures can be benefited successively would rely upon the realities and conditions of the case. As expressed in the judgment,

“Regardless of whether the respondent has embraced lazy strategies or where there is an absence of true blue in seeking after the cure of advance under Section 96(2) of the Code, must be considered relying on the realities and conditions of each case. In the event that the court is fulfilled that the litigant has received late strategies or where there is an absence of true blue, the court may decrease to excuse the postponement in recording the main intrigue under Section 96(2) CPC. Be that as it may, where the litigant has been seeking after the cure true blue under Order IX Rule 13 CPC, if the court won’t support the postponement in the time spent in seeking after the cure under Order IX Rule 13 CPC, the respondent would be denied of the statutory right of the bid.

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Regardless of whether the litigant has received tardy strategies or where there is absence of true blue in seeking after the cure of offer under Section 96(2) of the code after the rejection of the application under Order IX Rule 13 CPC, is an issue of reality and the equivalent must be considered relying on the realities and conditions of each case.”

Applying these standards, the Supreme Court found that in the present case, the appealing party had acted in a bona fide way.

“Thinking about the realities and conditions of the case and in light of a legitimate concern for equity, in our view, the appealing party merits a chance to advance his resistance in the suit for the recuperation of cash.”

In this way, it put aside the High Court judgment, overlooked the postponement and sent the case back to the High Court, relying on the prerequisite that the litigant makes a store of Rs 20,00,000 separated from the Rs 25,00,000 he had just kept.

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