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High Court Of Delhi
GUJRAT CO OPERATIVE OIL SIDS GROWERS FEDERATION - Appellant
Versus
RAMESH KANTA JAIN - Respondent
First Appeal (OS) 140 of 1994
Decided On : 08/30/1994
Order IX Rule 13 - Applicability to Orders under Order VIII Rule 10 - The provisions of Order IX Rule 13 of the Code of Civil Procedure are applicable to the orders passed under Order VIII Rule 10. The legal proposition of law laid down in the cited judgments supports this applicability.
Fact of the Case:
The appeal was filed against the rejection of an application under Order IX Rule 13 of the Code of Civil Procedure, based on the view that the suit was disposed of under Order VIII Rule 10.
Finding of the Court:
The court found that the order passed by the learned single Judge was incorrect, and the provisions of Order IX Rule 13 are applicable to the orders passed under Order VIII Rule 10. The court allowed the appeal, set aside the impugned order, and restored the application under Order IX Rule 13 to the file of the suit.
Issues: The issues involved the applicability of Order IX Rule 13 to orders under Order VIII Rule 10 and the necessity of filing an appeal against the decree.
Ratio Decidendi: The court held that the provisions of Order IX Rule 13 are applicable to orders passed under Order VIII Rule 10, and it is not necessary to file an appeal against the decree if an application under Order IX Rule 13 is maintainable.
Final Decision: The appeal was allowed, the impugned order was set aside, and the application under Order IX Rule 13 was restored to the file of the suit for disposal in accordance with the law.
( 1 )
( 2 ) THIS appeal has been filed against the order of the learnedsingle Judge dated 16-5-1994 rejecting the application underorder IX Rule 13 of the Code of Civil Procedure. The learnedsingle Judge thought that in view of the fact that the suit wasdisposed of under Order VIII Rule 10 of the Code of Civilprocedure by an order dated 6-5-1994, the provisions of Orderix Rule 13 are not attracted to the facts of the present case.
( 3 ) WE are of the view that the order passed by the learnedsingle Judge is not correct. In our opinion, the provisions oforder IX Rule 13 of the Code of Civil Procedure are applicableto the orders passed under Order VIII Rule 10. The authoritiescited by the learned counsel for the appellant AIR 1981 Madras258 (1), AIR 1985 Kamataka 77 (2), AIR 1988 Kerala 161 and304 (3), AIR 1987 Supreme Court 42 (4) and AIR 1988 Supremecourt 1381 (5), are in point. Learned counsel for the respondentis unable to dispute the legal proposition of law laiddown in theaforesaid judgments. The impugned order is liable to be set aside.
( 4 ) A point has been raised by the learned counsel for therespondent that the appellant ought to have filed appeal againstthe decree as such. We are unable to accept the contention ofthe learned Counsel for the respondent. It is not necessary for theappellant to file an appeal against the decree. Once an applicationunderorder IX Rule 13 is maintainable, it is open to the appellantto apply for setting aside of the order passed under Order VIIIRule 10. The appeal is accordingly allowed and the impugnedorder dated 16-5-1994 is set aside. The application filed underorder IX Rule 13 is restored to the file of the suit and the samewill be disposed of in accordance with law. Parties are directedto appear before the learned Single Judge on 19-9-1994.
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