Shyam Sundar Sarma v Pannalal Jaiswal (2004)

A defendant against whom an ex parte decree has been passed has two routes: apply to the trial court under Order IX Rule 13 to set the decree aside, or appeal against it. The Explanation to Order IX Rule 13 prevents him from doing both — if he appeals and the appeal is disposed of otherwise than by withdrawal, the Rule 13 application is barred.

This case answers the question that decides a great many applications: an appeal filed out of time, where the application to condone delay is refused, is dismissed without any consideration of merits. Is that still "an appeal disposed of" for the purposes of the Explanation — or was there, in law, no appeal at all?

The Court's answer is that there was an appeal, and the bar applies. A time-barred appeal is still an appeal; its rejection is still a decision in the appeal.

The first respondent sued in Title Suit No. 89 of 1992 in the Munsif's Court at Howrah for a declaration of his title as a Thika Tenant. The appellant, defendant No. 1, appeared and contested the suit and an application for interim injunction, which was dismissed. The plaintiff appealed that order under Order XLIII Rule 1.

An ex parte decree was later passed against the appellant. He then did two things:

1. filed a petition under Order IX Rule 13 to set aside the ex parte decree, with an application to condone the delay in filing it — the delay was condoned, and that condonation was affirmed up to the High Court; and
2. filed an appeal against the ex parte decree, with an application to condone the delay in filing the appeal. That application failed and the appeal was dismissed.

The plaintiff then argued that, the appeal having been disposed of and not withdrawn, the Explanation to Order IX Rule 13 barred the petition.

The appellant argued the opposite: the appeal had been dismissed for default consequent on refusal to condone delay, so in the eye of law there had been no appeal, and the Explanation created no bar — particularly as the delay in filing the Rule 13 petition had already been condoned.

The trial court held the Explanation applied because "the appeal against the ex parte decree filed by the first defendant was not withdrawn", and dismissed the petition. The lower appellate court agreed. The High Court, under Article 227, held the point covered by decisions of the Supreme Court and dismissed the petition. Hence this appeal.

Where an appeal against an ex parte decree is dismissed because the delay in filing it is not condoned, is that an appeal "disposed of" within the Explanation to Order IX Rule 13 — so as to bar an application under that Rule?

Appeal dismissed. The Explanation applied and the Order IX Rule 13 petition was barred.

A time-barred appeal is still an appeal

The Court proceeded on the principle in Messrs Mela Ram and Sons, and in Raja Kulkarni, that an appeal presented out of time is an appeal, and an order refusing to condone the delay and dismissing it "is nevertheless a decision in the appeal."

Rani Choudhury applied

The question "was squarely considered by this Court in Rani Choudhury's case", which the High Court rightly held to cover this one. There a wife obtained an ex parte decree of divorce; the husband appealed with a s. 5 application; the High Court dismissed the appeal as time barred; the husband then moved under Order IX Rule 13. The High Court had thought the Explanation inapplicable because the appeal had been dismissed "not on merits but on the ground of limitation ... which meant that no appeal was preferred in the eye of law."

The Supreme Court rejected that view, holding "that where there has been an appeal against an ex parte decree and the appeal has not been withdrawn by the appellant and had been disposed of on any ground, the application under Order IX Rule 13 of the Code would not lie and should not be entertained." So "even though the appeal against the ex parte decree was disposed of on the ground of limitation and not on merits, the Explanation to Order IX Rule 13 of the Code was attracted."

The contrary authorities dealt with

• The Full Bench of the Calcutta High Court in Mamuda Khateen v Beniyan Bibi AIR 1976 Cal 415 had held that rejection of a time-barred memorandum of appeal was neither a decree nor an appealable order. The Court found that the Full Bench "had not considered the decisions of this Court in Raja Kulkarni and in Messrs Mela Ram and Sons", and that "since the ratio of that decision runs counter to the principle laid down by this Court in Messrs Mela Ram and Sons, obviously the same could not be accepted as laying down a correct law."
• Ratansingh v Vijaysingh (2001) 1 SCC 469 had held that dismissal of a condonation application is not a decree. That was distinguished as "rendered in the context of Article 136 of the Limitation Act, 1963" and the departure made in that context.

An appeal filed beyond time is an appeal, and its dismissal on refusal to condone the delay is a disposal of the appeal. Where a defendant has appealed against an ex parte decree and has not withdrawn that appeal, the Explanation to Order IX Rule 13 bars an application to set aside the decree, whatever the ground on which the appeal was disposed of.

• Direct question: What are the remedies of a defendant against an ex parte decree? Order IX Rule 13; appeal under s. 96(2); review; and in a proper case a separate suit on fraud. Then explain the Explanation and the election it forces, with this case.
• Problem question pattern: the defendant appeals late, the appeal is thrown out on limitation, and he then moves under Order IX Rule 13. The petition is barred. The only escape is to have withdrawn the appeal — say so explicitly, since the Explanation turns on withdrawal.
• Point of technique: note how the Court dealt with the Calcutta Full Bench — a High Court decision reached per incuriam, without considering binding Supreme Court authority, is not good law.
• Read with: Thungabhadra Industries on review and the limits of reopening, and the limitation material in this unit.