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.

JUDGMENT :

1. Since the impugned order in both the appeals is the same, therefore, this Court proposes to take up both the appeals together for disposal by way of a common order.

2. The present appeals have been preferred by the appellant under Sections 96 of the Civil Procedure Code (for short, “ CPC ” against the order dated 18.09.2023 (hereinafter referred to as the, “impugned order”) passed by the Court of learned Principal District Judge, Kathua (Presiding Officer, MACT Cases), Kathua (hereinafter referred to as the, “MACT, Kathua”), whereby an application for condonation of delay and setting aside ex-parte decree has been dismissed with a prayer for setting aside the same.

3. The appellant through the medium of instant appeals has also sought a relief of setting aside the ex-parte decree dated 14.05.2019 passed in Claim petition Nos. 81/2015 & 82/2015 titled, “Kamlesh Devi and ors. Vs. Raman Kumar and ors.” & “Pinky Devi and ors. Vs. Raman Kumar and ors.” and ex-parte proceedings initiated against him on 18.04.2017.

4. The record reveals that this Court vide order dated 25.11.2024 granted last and final opportunity of two weeks to learned counsel for the appellants in both the appeals to deposit the statutory amount, failing which, it was directed that appropriate orders would follow. It has been brought to the notice of this Court by the learned counsel for the respondents that the aforesaid order has not been complied with till date.

5. Today, when the instant appeals were taken up, there was no representation on behalf of the appellant. However, Ms. Damini Chauhan, Advocate appearing vice Mr. D.S. Chauhan, Advocate on behalf of respondent-Insurance Company has submitted that the instant appeals are liable to be dismissed for the reason that the same are not maintainable under Section 96 of the CPC , as the said provision of the CPC relates to the Appeals from Original Decrees. For facility of reference, Section 96 of the CPC is reproduced as under:-

“96. APPEALS FROM ORIGINAL DECREES

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by an Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2). An appeal may lie from an original decree passed ex-parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees].”

6. From a bare perusal of the aforesaid provision of the CPC , it is apparently clear that the appeal shall lie from the original decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decision of such Court and the aforesaid provision is also extended to the original decree passed ex-parte. It is also made clear that no appeal shall lie from a decree passed by the Court with the consent of the parties and from a decree in any suit of the nature cognizable by the course of small causes, when the amount or the value of the subject matter of the original suit does not exceed Rs.10,000/- (Rupees Ten Thousand).

7. Learned counsel for the Insurance Company has vehemently argued that the instant appeals are not maintainable, as the appellant has preferred the same under Section 96 of the CPC against the impugned order and, thus, no appeal under the aforesaid provision was maintainable and, accordingly, she prays that both the appeals are liable to be dismissed.

8. With a view to fortify her claim, learned counsel for the Insurance Company has placed reliance on the judgment passed by the Hon’ble Apex Court in Civil Appeal (SLP) (C) No. 5489 of 2021, titled “The Koushik Mutually Aided Cooperative Housing Society Vs. Ameena Begum & Another”, decid