Limitation for appeal against order to dismissal by the applicant.

These two petitions raise an interesting point of limitation law for determination in connection with orders passed under Order 9, rule 13, Civil Procedure Code.

The petitioner was a defendant in two suits. The first was by his wife’s brother, O.S.No. 319 of 1947 for recovery of mesne profits. This was decreed ex parte on 9th January, 1948. He filed an application to set the decree aside on 23rd January, 1948. On this an order was passed on 19th January, 1949, directing the decree, to be set aside on certain conditions, that Rs. 25 was to be paid by 7th February, 1949, and in default the application was to be dismissed. The petition was called on 8th February, 1949 and the Court passed a further order “costs not paid. Dismissed.” The petitioner appealed against this order to the District Judge, who On payment of Rs. 41 by the petitioner to the respondent directed the ex parte decree to be set aside. In C.R.P.No. 1843 of 1949 filed by the plaintiff in that suit against that order, Balakrishna Aiyar, J., set aside the order of the District Judge observing that there was no finding that the appellant was prevented by sufficient cause from appearing in the trial Court on the relevant date, and inter alia directing a question of limitation, viz., that the appeal to the District Judge was time-barred to be heard and disposed of. The learned District Judge dismissed the appeal with costs on the sole ground that the appeal was time-barred as the order to be appealed against was the first order dated 19th January, 1949 and not the formal order of dismissal on 8th February, 1949. If the latter date is taken into consideration, the appeal would be in time.

The same point has arisen in another suit, O.S.No. 139 of 1950 filed by the plaintiff’s wife for maintenance in which she claimed Rs. 30 a month. This was decreed ex parte on 26th July, 1950. The application to set aside this decree was filed on 21st August, 1950, and a conditional order passed on 25th October, 1950, allowing it to be set aside on petitioner paying Rs. 35 costs and depositing Rs. 150 by 1st December, 1950, with a direction that in default his application was to be dismissed. This application was called on 1st December, 1950, when the Court passed the following order:

“Costs alone tendered, but refused. The petitioner wants time to pay Rs. 150. The order works itself out. The petition is therefore dismissed.”

Petitioner’s appeal to the District Court, C.M.A.No. 4 of 1951 was heard on the same date as his previous appeal C.M.A. No. 20 of 1949 and similarly dismissed as being time-barred in a separate judgment.

The point for determination is what is the criterion date for limitation in a case of this kind for purposes of an appeal. Under Order 43, rule 1(d), an appeal shall lie from an order under rule 13 of Order 9, rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte. This is the only provision in law under which these appeals lie. The conditional order passed in these two cases is of a very common type and frequently used on the admission side of this Court. It is regarded as a final order, one favourable to the petitioner, if he complies with the conditions by the appointed date, whereas if he fails to do so, the order works itself out automatically as one of dismissal adverse to the petitioner. In Ramayya v. Lakshmayya1, Mockett and Bell, JJ., considered a conditional order of dismissal of this kind and held that it was final and appealable, the further order of dismissal for default of compliance with the conditions merely recording the legal position which had arisen from non-fulfilment of the condition precedent. A different view was taken by Madhavan Nair, J., sitting by himself in Rajagopalachari v. Narasimha Thathachariar2, that the first order of the trial Court was merely conditional and that it was only the final order dismissing the application to set aside the ex parte decree, which was appealable unde