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SUPREME COURT OF INDIA
R.C. LAHOTI, CJI., A.P. MATHUR, J.
BHULAN ROUT AND ANOTHER - APPELLANTS
VERSUS
LAL BAHADUR YADAV - RESPONDENT
CIVIL APPEAL NO. 5424 OF 2004,
DECIDED ON AUGUST 23, 2004
Civil Procedure Code, 1908, Order 9, Rule 13 and Order 43, Rule 1(d) -Maintainability of appeal- Application for setting aside of ex parte decree- Trial court allowed the application - In appeal the District Judge set aside the said order- Held no appeal would be maintainable since order rejecting the application can be assailed in appeal and not an order allowing the said application- Order of the District Court set aside[Para 4]
ORDER
1. DELAY CONDONED.
2. LEAVE GRANTED.
3. BY ORDER DATED 8-2-2001, THE TRIAL COURT ALLOWED AN APPLICATION UNDER ORDER 9 RULE 13 CPC AND SET ASIDE THE EX PARTE DECREE PASSED AGAINST THE APPLICANTS THEREIN. FEELING AGGRIEVED BY THE SAID ORDER DATED 8-2-2001 THE PLAINTIFFS FILED AN "APPEAL" IN THE COURT OF DISTRICT JUDGE, SIWAN WHICH WAS ALLOWED BY ORDER DATED 4-10-2001. AGAINST THIS ORDER THE DEFENDANTS PREFERRED A REVISION WHICH HAS BEEN DISMISSED BY THE HIGH COURT. THEY HAVE COME UP TO THIS COURT BY FILING THIS PETITION FOR SPECIAL LEAVE.
4. THE ONLY SUBMISSION MADE BY THE LEARNED COUNSEL FOR THE APPELLANTS IS THAT THE ORDER DATED 4-10-2001 PASSED BY THE LEARNED DISTRICT JUDGE, SIWAN IS WITHOUT JURISDICTION INASMUCH AS THE ORDER OF THE TRIAL COURT PASSED ON APPLICATION UNDER ORDER 9 RULE 13 CPC AND ALLOWING THE APPLICATION BY SETTING ASIDE THE EX PARTE DECREE COULD NOT HAVE BEEN APPEALED AGAINST. A BARE PERUSAL OF ORDER 43 CPC SHOWS THAT AN APPEAL IS MAINTAINABLE, INSOFAR AS AN APPLICATION UNDER ORDER 9 RULE 13 CPC IS CONCERNED, ONLY AGAINST AN ORDER REJECTING AN APPLICATION AND NOT AGAINST AN ORDER ALLOWING THE APPLICATION. THE APPEAL BEFORE THE LEARNED DISTRICT JUDGE WAS WHOLLY MISCONCEIVED AND NOT MAINTAINABLE AND THE SAME COULD NOT HAVE BEEN ALLOWED. THE LEARNED COUNSEL FOR THE RESPONDENT HAS FOUND IT DIFFICULT TO DISPUTE THIS LEGAL POSITION.
5. THE APPEAL IS ALLOWED. THE ORDER DATED 4-10-2001 PASSED IN MA NO.8 OF 2001 PASSED BY THE LEARNED DISTRICT JUDGE, SIWAN IS SET ASIDE AS WITHOUT JURISDICTION AND WITH THAT THE ORDER OF THE HIGH COURT PASSED IN CIVIL REVISION UPHOLDING THE ORDER OF THE LEARNED DISTRICT JUDGE ALSO GOES.
6. NEEDLESS TO SAY THAT THE RESPONDENT HEREIN IS AT LIBERTY TO AVAIL SUCH REMEDY AGAINST THE ORDER DATED 8-2-2001 AS MAY BE AVAILABLE TO HIM UNDER THE LAW, WHICH IF AVAILED, SHALL BE HEARD AND DETERMINED ON ITS OWN MERITS BUT WE EXPRESS NO OPINION THEREON.
7. NO ORDER AS TO THE COSTS.
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