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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN
Gopala Krishnan @ G.K.Nair, S/o.Late Sundaresan Nair – Appellant
Versus
Sarath Lal, S/o. Sivankutty & Remani – Respondent
JUDGMENT :
A. BADHARUDEEN, J.
Defendant in O.S.No.161 of 2011 on the files of the Sub Court, Nedumangad, has filed R.F.A.No.257/2015, challenging the decree and judgment in the above suit dated 03.12.2011, arraying plaintiff in the suit as the respondent.
2. Heard the learned counsel for the appellant/defendant and the learned counsel for the respondent/plaintiff.
3. Parties in this appeal will be referred to as to their status before the trial court as `plaintiff’ and `defendant’, hereafter.
4. In this case exparte decree dated 03.12.2011 is put under challenge. Exparte decree has been passed due to failure on the part of the defendant to appear before the trial court. Thus the legal question arise are:
i) Whether an exparte decree is appealable?
ii) Whether an appeal under Section 96 (2) r/w Order 41 of the Code of Civil Procedure (`CPC’ for short) is maintainable even after dismissal of an application filed under Order 9 Rule 13 of CPC?
iii) What are the matters of consideration in a petition filed under Order 9 Rule 13 of CPC? Vis-a-vis in an appeal filed under Section 96 (2) r/w Order 41 of CPC challenging an exparte decree?
5. Coming to the question as to whether a regular appeal unde
A regular appeal against an exparte decree under Section 96(2) r/w Order 41 of CPC is maintainable, despite prior dismissal under Order 9 Rule 13, focusing on merits without contradicting earlier fin....
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.
A defendant must demonstrate justifiable reasons for absence to succeed in an application under Order 9 Rule 13 CPC.
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....
Once an ex-parte decree is merged with an appellate decree, an application under Order 9 Rule 13 CPC is not maintainable as per legislative intent.
An appeal against an order allowing the setting aside of an ex-parte decree is not maintainable under the Code of Civil Procedure.
An ex-parte decree can only be set aside if sufficient cause for non-appearance is demonstrated, which was not established in this case.
Suit – Exparte judgment and Decree – Maintainability Appeal - When an application under Order 9 Rule 13 of the CPC is dismissed, the defendant can only avail a remedy available there against, namely,....
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....
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