Dismissal of an application under Order IX Rule 13 of CPC does not bar the statutory right of first appeal under Section 96 of CPC

The Court further held that both the remedies could be pursued simultaneously however, if an appeal is dismissed earlier then an application under Order IX Rule 13 is rendered not maintainable.

The above ratio was passed in the matter of N. Mohan vs. R. Madhu, Civil Appeal No. 8898 of 2019 decided on 21.11.2019.

Challenge

The Supreme Court was called upon to decide the following questions:

• whether after dismissal of the application filed under Order IX Rule 13 CPC, an appeal filed under Section 96(2) CPC against the ex-parte decree is maintainable?

• (ii) Whether the time spent in the proceedings to set aside the ex-parte decree be taken as “sufficient cause” within the meaning of Section 5 of the Limitation Act, 1908 so as to condone the delay in preferring the first appeal?

Held

The Supreme Court reiterated its view taken in the matter of Bhanu Kumar Jain vs. Archana Kumar (2005) 1 SCC 787 wherein it was held that right to appeal under Section 96(2) challenging the original decree passed ex-parte is a statutory right and the defendant cannot be deprived of it merely on the ground that the application filed under Ordrer IX Rule 13 CPC was earlier dismissed.

The Apex Court further held that a defendant can avail the remedies of a first appeal and Order IX Rule 13 of CPC simultaneously. However, if an appeal under Section 96 is dismissed first then an application under Order IX Rule 13 is not maintainable.

As regards the question of condonation of delay in filing first appeal, the Supreme Court cautioned that a Court must ascertain based on the facts whether a defendant has bona fide pursued the relief of Order IX Rule 13 or whether the delay in filing an appeal was only a dilatory tactic of the defendant.