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IN THE HIGH COURT OF ALLAHABAD
KSHITIJ SHAILENDRA, J.
Rajkumar – Petitioner
Versus
Deshraj – Respondent
Civil Misc. Writ Petition No. 6879 of 2023
Decided On : 13-06-2023
APPEAL - SPECIFIC RELIEF ACT - The court interpreted Section 6(3) of the Specific Relief Act 1963, which bars appeals from orders in suits filed under this section. The court upheld the appellate court's dismissal of the appeal as not maintainable, emphasizing the statutory bar against appeals in such cases, while also noting the availability of a revision remedy under Section 115 C.P.C.
Fact of the Case:
The petitioner was the defendant in a suit filed under Section 6 of the Specific Relief Act 1963, which was decreed ex parte. The petitioner appealed the decree, which was dismissed by the appellate court as not maintainable.
Finding of the Court:
The court found that the appellate court correctly applied Section 6(3) of the Specific Relief Act, which prohibits appeals from such decrees, and thus no illegality was present in the dismissal of the appeal.
Issues: Whether an appeal against an ex parte decree in a suit filed under Section 6 of the Specific Relief Act is maintainable.
Ratio Decidendi: The court held that Section 6(3) of the Specific Relief Act 1963 imposes a clear bar on appeals from orders or decrees in suits filed under this section, confirming the appellate court's decision.
Result: The petition was disposed of, allowing the petitioner to file a revision against the ex parte decree, while declining to interfere with the appellate court's order.
JUDGMENT :
KSHITIJ SHAILENDRA, J.
1. The petitioner was defendant in Original Suit No. 376 of 2006 which was filed under Section 6 of the Specific Relief Act 1963. The suit was decreed ex parte on 22.11.2017. The petitioner filed a Civil Appeal No. 105 of 2017 under Section 96 C.P.C. which has been dismissed by the order impugned dated 28.4.2023 as not maintainable.
2. Learned counsel for the petitioner has argued that since appeal even against an ex parte decree is maintainable under Section 96(2) C.P.C., the order impugned is illegal.
3. Shri Nipun Singh, learned counsel for the respondent has argued that since admittedly, the suit was filed under Section 6 of the Specific Relief Act 1963 there is a clear bar under Section 6(3) of the said Act which provides that no appeal shall lie from any order or decree passed in such suit.
4. Having heard learned counsel for the parties, I find that the appellate Court has dealt with the provisions of Section 6(3) of the Specific Relief Act 1963 and in view of statutory bar against the appeal, no illegality is found in the order of the appellate Court. However, in view of the language used under Section 115 C.P.C. there is remedy of filing revision in case where appeal has not been provided, I find that petitioner has alternative remedy of filing revision before the appropriate Court.
5. In view of the above, while declining to interfere in the order dated 28.4.2023, liberty is granted to the petitioner to file a revision against ex parte decree dated 22.11.2017 alongwith appropriate application.
6. This petition under Article 227 of the Constitution of India is, accordingly disposed off.
7. Office is directed to return certified copies of the orders annexed alongwith this petition to the learned counsel for the petitioner after retaining the photo-stat copies on record.
AI
Section 6(3) of the Specific Relief Act 1963 bars appeals from decrees in suits filed under this section, necessitating alternative remedies such as revision.
The limitation for setting aside an ex parte judgment under Order IX Rule 13 CPC begins from the date of the judgment, not the date of knowledge.
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....
Negligence of the petitioners in court proceedings can impact the maintainability of a petition for setting aside an ex parte decree.
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.
The court emphasized that the discretion to condone delay must be exercised judiciously, and the law of limitation must be applied rigorously.
Ex-parte judgment – Ex-parte judgment should show the application of minimum requirement of consideration of the pleadings, issues, evidence and the relief sought for rendering such judgment - Litiga....
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