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RAVI NATH TILHARI, NYAPATHY VIJAY
Mootha Ramakoti – Appellant
Versus
Theatare Swapna Rep. by its Managing Partner – Respondent
JUDGMENT :
(Per Ravi Nath Tilhari, J)
Heard Sri Bhanuvarma, learned counsel representing Sri Y.V.Ravi Prasad, learned counsel for the appellant and Sri V.L.N.G.K.Murthy, learned counsel for the respondents.
2. This appeal is filed by the plaintiff.
3. The plaintiff’s O.S.No.29 of 1983 was decreed ex-parte against the defendants/respondents. They filed the application I.A.No.242 of 2006 for setting aside the ex-parte decree under Order 9 Rule 13 of Code of Civil Procedure, 1976 (in short “CPC”). The said application has been allowed and ex-parte decree has been set - aside by an order dated 16.07.2007.
4. Challenging the order dated 16.07.2007, this appeal has been filed under Order 43 Rule 1 CPC.
5. Section 104 CPC reads as under:-
104. Orders from which appeal lies:- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders,-
(a) to (f) [xxx].
[(ff) an order under Section 35A;]
[(ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;
(g) an order under
An appeal against an order allowing the setting aside of an ex-parte decree is not maintainable under the Code of Civil Procedure.
The main legal point established is the applicability of Order IX Rule 13 to orders passed under Order VIII Rule 10 and the permissibility of applying for setting aside of the order under Order VIII ....
The main legal point established in the judgment is that appeal is a statutory right and must be explicitly provided for in a statute. The judgment also emphasizes the principles governing a suit und....
An ex-parte decree can only be set aside if sufficient cause for non-appearance is demonstrated, which was not established in this case.
A defendant must demonstrate justifiable reasons for absence to succeed in an application under Order 9 Rule 13 CPC.
Repeated applications under Order IX Rule 13 after dismissal are impermissible if previously affirmed by a higher court, reaffirming the limitation provisions under the Limitation Act.
The court ruled that appeals against ex-parte decrees must be filed under Order XLIII Rule 1(d) of the CPC, not Section 96, which applies to original decrees.
An appeal under the Motor Vehicles Act against an ex-parte award requires specific provisions and is limited by the application of procedural rules.
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