Devaki alias Devi and Others vs S. Vani

V. Bakthavatsalu, J.—The revision is directed against the order passed by the learned I Additional Sub-Judge, Erode in I.A. No. 62 of 2000. The defendants are the revision petitioners. The respondent herein filed suit O.S. No. 220 of 98 on instrument dated 25.3.96. The defendants in the suit are the legal representatives of the deceased Thiyagarajan. The suit was posted for the evidence of the defendants on 6.7.99. As the defendants failed to appear on that date, ex parte decree was passed. Thereupon, the first defendant filed an application under Order 9 Rule 13 CPC stating that she fell sick of diorrhea and vomiting and that she could not attend the Court and that therefore, the ex parte decree may be set aside. The Plaintiff filed counter resisting the above application.

On consideration of the materials on record, the trial Court allowed the petition imposing certain conditions. The trial Court has passed order directing the defendants to deposit Rs. 2 lakhs on or before 28.9.2000, failing which, the application would stand dismissed and the application was posted to 29.9.2000 It is seen that the conditional order was not complied with. Thereafter on 1.12.2000, the defendants have filed this revision challenging the above conditional order.

It is contended by the revision petitioners that the amount mentioned in the conditional order is over and above the suit claim and that the trial court ought to have considered the reasons assigned by the petitioner for non-appearance on the hearing date and that the conditional order passed by the trial Court is an onerous order.

On the other hand, learned counsel for the plaintiff/respondent contended that against the order passed under Order 9 Rule 13 CPC, only an appeal will lie and that the revision is not maintainable and that in any event, the trial Court is empowered to impose certain conditions for setting aside the exparte decree. Learned counsel for the revision petitioners and also learned counsel for the plaintiff/respondent cited number of decisions in support of their contentions.

Before proceeding further to decide the crucial point involved in the revision, it would be useful to refer to the nature of the order passed by the trial Court. It is seen that the revision petitioners filed application under Order 9 Rule 13 CPC for setting aside the ex parte decree. The trial Court has allowed the petition imposing certain conditions to be fulfilled on or before 28.9.2000. As per the above conditional order, the revision petitioners have to deposit a sum of Rs. 2 lakhs into Court. It is also specifically stated in the order that the application would stand dismissed, if the petitioner fails to deposit the amount within the stipulated date. Now, the question is : whether only an appeal would lie against the said order.

As per Order 43 Rule 1(d) CPC an appeal shall lie against the 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. It is contended by the learned counsel for the respondent/ plaintiff that the order passed by the trial Court imposing conditions is a final order and that the appeal has to be filed within 30 days from the date of said order. On the question as to from which date, the order will become final-learned counsel relies upon a decision reported in Kotaiah vs. Narasimham (AIR 1949 Mad 469). The facts of the above case will show that the trial Court passed order on 3.7.1946 directing the petitioner to deposit the amount on or before 2.8.1946 failing which the petition will stand dismissed automatically. The Court relying upon a decision reported in Ramayya Vs. Lakshmayya, , has held thus :

"Where the petitioner had to do certain things, namely, to deposit costs, etc., into Court, to get the ex parte order set aside, with a direction that if he did not do so, the petition was to stand dismissed with costs, the order would be a final one and the appeal should be filed within thirty days."

The above decision will show that the order passed by the trial Court in this case, imposing certain conditions to be complied with on or before 28.9.2000, is a final order. An identical question also came up for consideration before this Court in the decision reported in Balarama Reddi Vs. Subbarama Reddi and Another, ). In the above decision, the Court has held thus : -

"Where an application is made by the defendant to set aside an ''ex parte'' decree passed against him and the Court makes a conditional order directing the decree to be set aside on certain conditions in default of which the application is to be dismissed, such an order is final for the purpose of an appeal allowed under O 43 Rule 1(d) CPC. For an appeal from such an order time begins to run from the date the order is made and not from the date when the Court makes a further order dismissing the application on the failure to perform the condition."

The contrary view expressed in T.N. Rajagopalachari Vs. Narsimha Thathachariar and Others, was not approved in the above decision. In the above decision, the Division Bench Judgment of this Court i.e., C. Ramayya Vs. M. Lakshmayya (Supra) is followed. The Court has further observed thus:

"With great respect I am in agreement with the view taken by Mockett and Bell JJ. that the first order in such cases must be regarded as final and appealable. It is tantamount to a rejection of an appeal unless certain conditions are satisfied. It is open to a party affected by such an order to appeal on the ground that the conditions imposed are too onerous, that the ex parte decree should be set aside or the suit restored to file without any terms at all."

It is, thus, seen from the above decision that conditional order is a final order and that it is appealable.

Learned counsel for the respondent relies upon a recent judgment of this Court reported N. Palanisamy Vs. C. Rathinasami, . It is seen from the facts of the above case that the trial Court passed an order directing the appellant to deposit one half of the decree amount as a condition for setting aside the ex parte decree and the Court gave time till 5.8.91 and adjourned the matter to 6.8.91 for further orders. Meanwhile, the appellant preferred an appeal against the order imposing the condition on the ground that it was onerous. Having regard to the above facts, this Court has held that the order challenged in the appeal is not one which will fall under Order 43 Rule 1(d) CPC. As there is no order rejecting the application filled under Order 9 Rule 13 CPC and that unless there is an order rejecting the application, no appeal will lie. The Division Bench Judgment of this Court i.e., C. Ramayya Vs. M Lakshmayya (Supra) is also referred to in the above case. The Court has held that the above ruling of the Bench will not apply to the case reported in the above appeal. The decision of the Division Bench in Ramayya''s case is considered by the Court in the following terms: -

"In that case, a rolled up order was passed by the Court. The order while directing deposit of costs, declared that the petition will stand dismissed with costs in the event of the deposit not being made. Subsequently, an order was passed by the Court stating that the earlier order itself declared the petition to be dismissed in the event of default and therefore, no further order was necessary and the decree passed already would stand. In the appeal, the Bench held that the said appeal was maintainable, as in the said order it set out the consequences of the default and declared that the petition will stand dismissed."

Attention of this Court is also drawn to an identical question, which has arisen in the Rent Control Appeal in Basil Products Vs. Mathuram Perumal and Others, . The facts of the above case would show that the Court passed orders on 20.3.86 directing that the petition would be allowed on payment of Rs. 25/- on or before 2.4.86 and stipulating that failing payment, the petition would be dismissed and the petition was called on 3.4.86. As the amount had not been paid the petition was dismissed. ''B'' filed an appeal against the order dated 3.4.86. It was also dismissed. Thereupon, he filed a revision. Considering the above facts, the High Court has held that the first order was the only order in the case and the second order was nothing more than recording the legal position which had arisen from the nonfulfillment of the condition and that the second order was not any further order, because no further order was required in the case. For coming to such a conclusion, the Court has also followed the Division Bench Judgment reported in Ramayya Vs. Lakshmayya (supra). The above decision is also an authority for the proposition that if the conditional order is passed in the application under Order 9 Rule 13 CPC and if the conditions are not fulfilled within the stipulated time, as a result of which, the petition would stand dismissed automatically, then the appeal has to be filed within 30 days from the date of first order and not from the second order. The Patna High Court also, in the decision reported in Mufti Reazuddin and Others Vs. Maheshanand and Others, , has held that Order 43 Rule I(d) CPC specifically provides for an appeal against the order passed under Order 9 Rule 13 CPC rejecting the application to set aside the decree passed exparte.

A Full Bench of Assam High Court in the decision reported in Madanlall Agarwalla Vs. Tripura Modern Bank Ltd. has held thus: -

"First, let us examine whether an appeal would be competent against an order of dismissal of an application under Order 9 Rule 13, Civil P. C. for default of appearance of the petitioner, Order 43 Rule 1(d). Civil RC. provides that 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. The Rule does not say that an appeal will be competent only in cases where the application under Order 9 Rule 13 is rejected on consideration of the merits. There being nothing in the statute to the effect that an appeal is competent only when the order is passed on consideration of merits, it must be presumed that an order rejecting an application to set aside an ex parte decree no matter under what condition passed, will be open to appeal."

It is thus explicit from the decisions referred to above that under Order 43 Rule 1 (d) the conditional order passed by the Court in the application filed under order 9 Rule 13 CPC is an appealable order. It is also seen from the above decisions that if the Court imposes certain conditions to be complied with before the stipulated date and the consequence of such non-compliance is stated in the very order itself, then it would be a final order. In this case, it is specifically stated in the order that the application would stand dismissed if the amount is not deposited within the stipulated date. Therefore, I have no hesitation in holding that the order passed by the trial Court in this case is an order which falls under Order 43 Rule 1 (d) CPC and that the remedy of the aggrieved party is only to file an appeal and not a revision.

Learned counsel for the revision petitioners contended that the Court u/s 115 CPC is empowered to correct and rectify the errors committed by the subordinate Courts and as such, the revision is maintainable. In support of the same, learned counsel relies upon a decision reported in Yamuna, N.S. Vs. A. Venugopal (2000 III CTC 724). The facts of the above case will show that in the petition filed under Order 9 Rule 7 CPC, the Court has directed the petitioner to deposit the suit claim within a month failing which the petition would stand dismissed. On the facts of the above case, the Court has held that the conditions imposed by the Court are onerous. The order passed under Order 9 Rule 7 CPC is not an appealable order. Order 43 mentions only two orders relating to Order 9 against which the appeal could be filed and they are Order 9 Rule 9 and Order 9 Rule 13 CPC. Therefore, the above reported decision will not assist the case of the revision petitioners in any way.

When once we come to the conclusion that the conditional order passed by the trial Court is an appealable order, it has to be held that the revision will not lie u/s 115 CPC. Sub-clause (1) to Section 115 CPC states that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate Court appears.....Sub-clause(2) to Section 115 reads thus : -

"The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto."

The powers of the High Court to interfere with the orders passed by the subordinate Court against which an appeal lies either to the High Court or Subordinate Court are curtailed. Under the present sub-clause (2) the High Court cannot reverse or vary any order when an appeal lies against it either to the High Court or to the Subordinate Court. In this context, it would be useful to refer to the observations of the learned Authors in AIR Commentaries, Code of Civil Procedure, Volume-II - 10th Edition Page 355.

"Prior to 1976 the High Courts as a matter of practice did not interfere in Revisions in cases where an appeal against the decree or order lay to the District Judge. By the addition of sub-sec. (2) this practice has been statutorily recognised in that the new sub-section now prohibits interference in Revision if an appeal against order or decree sought to be reversed lies to the High Court or any Court subordinate thereto.''

In view of the embargo contained in sub-clause (2) to Section 115 CPC, I am unable to sustain the contention of the revision petitioners that the order passed by the trial Court should be varied, since it is onerous. Learned counsel for the revision petitioners relies upon a decision reported in Brijnandan Prasad Singh Vs. Satya Narain Pd. Jain and Another, wherein it is held that even if the right of appeal to the lower appellate Court has not been availed of, the order should be interfered with, the High Court can do so under the section. The above decision will not assist the contention of the revision petitioners in any way since the above decisions was rendered before amendment.

Learned counsel for the revision petitioners relies upon a decision reported in Puranam Venkata Lakshmamma Vs. T.J. Ratnam and Others, wherein it is held that the right of the High Court to exercise its revisional jurisdiction is not taken away to correct errors, even though appeal alone is competent. The above decision was rendered before the amended CPC came into force. Therefore, the above decision will not apply to the facts of this case.

In N. Krishnamoorthy Vs. N.M.A.R.H. Ramaswamy Chettiar (died), P.S.V. Sevugan Chettiar and another, , this Court has held that once the revision petition is admitted, the High Court has got jurisdiction to set aside that order, if it falls within the scope of Section 115. The facts of the above case will show that during the pendency of the revision petition, an application under Order 34 Rule 5 CPC was filed for depositing the amount. On the above set of facts, the Court has held that it is open to the mortgagor to invoke the provisions of Order 34 Rule 5 when revision is pending against the order passed for setting aside the sale. Therefore, I hold that the above decision will not support the view taken by the revision petitioners.

Learned counsel for the revision petitioners contended that in certain cases, the Civil Revision Petition is converted as appeals and the Courts are not barred from passing suitable orders. In support of the same, he relies upon the decisions reported in Vishnumoorthi Vs. Rurda Shedthi (AIR 1974 Kar 41) and Karnataka 41 Jiwan Das Vs. Narain Das, . The conditions to be followed in converting the revision as appeal and appeal as revision are stated in the above decisions. In this case, the revision is filed long after the expiry of the limitation provided for filing the appeal. Therefore, the aggrieved party has to file an application to condone the delay in filing the appeal. In the above circumstances, the question of treating the revision as appeal would not arise at this stage. For the reasons stated above, I hold that the order passed by the trial Court is an appealable order and as such, only an appeal will lie and not a revision. I hold that the Civil Revision Petition is not maintainable. Since the revision petition is not maintainable I am unable to express any opinion on the question as to whether or not the conditions imposed by the trial Court are onerous. For the reasons stated above, I hold that the remedy of the petitioners is only to file an appeal. In the result, the Civil Revision Petition is dismissed. No. costs. Consequently, C.M.P. No. 1841 of 2001 is also dismissed.