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SANJAY KUMAR MEDHI
Sree Prakash Singh S/o Late B. N. Singh – Appellant
Versus
Trishit Dhar, S/o Late Tribeni Mohan Dhar – Respondent
JUDGMENT :
Heard Ms. G. Goswami, learned counsel for the petitioner, who has filed this petition under Article 227 of the Constitution of India against an order dated 24.05.2023 passed by the learned Court of Civil Judge, No. 1, Cachar, Silchar in Misc. (J) Case No. 28/2022 in connection with Misc. (J) Case No. 29/2022 in TS No. 113/2022.
2. The petitioner was the defendant against whom under certain circumstances, an ex-parteorder was passed which the petitioner was not aware of. Ultimately, the petitioner had approached the learned Court by filing an application under Order 9 Rule 13 CPC along with an application under Section 5 of the Limitation Act to condone the delay. The said petition filed under Section 5 of the Limitation Act has been dismissed resulting in consequential dismissal of the petition in Order 9 Rule 13.
3. The Hon’ble Supreme Court in the case of Shyam Sundar Sarma Vs Pannalal Jaiswal & Ors. reported in (2005) 1 SCC 436 has held that dismissal of an application under Section 5 of the Limitation Act would also mean a dismissal of the entire case and therefore an appeal would lie. In paragraphs 14 and 15, the Hon’ble Supreme Court has laid down as follows:-
The High Court's jurisdiction under Article 227 is limited; parties must appeal under Order 43 Rule 1(c) against dismissal of applications under Order 9 Rule 9 CPC.
The court held that a revision under Article 227 is not maintainable when an alternative remedy of appeal is available following the dismissal of an application for condonation of delay under the Lim....
Order passed under Rule 13 of Order 9 of CPC rejecting application for an order to set aside a decree passed ex parte, appeal would lie under Order XLIII Rule 1 (d) of CPC.
The main legal point established in the judgment is that the petitioner's approach through a petition under Art. 227 of the Constitution of India, instead of following the appropriate appeal process,....
Availability of such a remedy under the Code of Civil Procedure to be construed as near to total bar for the remedy under Article 227 of the Constitution of India.
Wherever the proceedings are under the Code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under CPC, will deter the High Court, not merely as a measure of self imp....
The right of the petitioner to contest the matter in execution proceedings and the imposition of appropriate cost to allow participation, as provided under Order 9 Rule 7 of CPC.
In considering applications for condonation of delay, courts must assess whether sufficient cause has been demonstrated based on events leading to the delay.
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