Twenty First Century Wire Rods Ltd. vs Punjab Steel Rolling Mills Pvt. Ltd.

M.R. Shah, J.—The present Appeal from Order has been preferred by the appellant herein original applicant defendant under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908 challenging the order Hated 20th June, 2009 passed by learned 7th Additional Senior Civil Judge, Vadodara below Exh-1 dismissing Misc. Civil Application No. 116 of 2008 filed by the appellant herein inter alia praying to condone the delay that has been caused in preferring an application under Order IX, Rule 13 of the Code of Civil Procedure, 1908.

The appellant herein-original applicant-defendant had preferred the application under Order IX, Rule 13 of CPC inter alia praying to set aside the ex-parte decree dated 30th October, 2004 passed by learned 8th Joint Civil Judge (S.D.), Vadodara. There was a delay in preferring the application under Order IX, Rule 13 of the CPC and, therefore, the appellant herein preferred Misc. Civil Application No. 116 of 2008 to condone the delay in preferring an application under Order IX, Rule 13 of the Code of Civil Procedure, which came to be dismissed by learned 7th Additional Senior Civil Judge, Vadodara vide impugned order dated 20th June, 2009, against which, the appellant herein original applicant-defendant has preferred the present Appeal from Order under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908.

Mr. Vimal Patel, learned advocate appearing on behalf of the appellant herein original applicant defendant was called upon to satisfy the Court with respect to maintainability of the present Appeal from Order under Order XLIII, Rule 1(d) of the CPC against the impugned order passed by the Trial Court dismissing the application to condone the delay in preferring an application under Order IX, Rule 13 of the CPC to set aside the ex parte decree and to that Mr. Vimal Patel, learned advocate appearing on behalf bf the appellant has submitted that the present Appeal from Order under Order XLIII, Rule 1(d) of CPC is maintainable against the order of dismissing the application to condone the delay in preferring the application under Order IX, Rule 13 of the CPC to set aside the ex parte decree.

Mr. Vimal Patel, learned advocate appearing on behalf of the appellant-original applicant - defendant has heavily relied upon the decision of Chhattisgarh High Court in the case of Laxmi Prasad Dubey Vs. Gulam Ali and Others, in support of his submission that against the order passed by learned Trial Court dismissing the application to condone the delay in preferring the application under Order IX, Rule 13 of the CPC to set aside the ex parte decree, the Appeal from Order under Order XLIII, Rule 1(d) of the CPC is maintainable. By making above submission, it is requested to allow the present Appeal from Order.

It is further submitted that if this Court is of the opinion that the present Appeal from Order under Order XLIII, Rule 1(d) of the CPC against the impugned order rejecting the application to condone the delay in preferring the application under Order IX, Rule 13 of CPC for setting aside the ex-parte decree, is not maintainable then the liberty may be reserved in favour of the appellant to challenge the same before the appropriate Court by way of appropriate proceedings.

At the outset, it is required to be noted that the present Appeal from Order has been preferred under Order XLIII, Rule 1(d) of the CPC challenging the order dated 20th June, 2009 passed by learned 7th Additional Senior Civil Judge, Vadodara below Exh-1 dismissing Misc. Civil Application No. 116 of 2008 filed by the appellant inter alia praying to condone the delay that has been caused in preferring the application under Order IX, Rule 13 of the Code of Civil Procedure. It is required to be noted that the present Appeal from Order as such not an Appeal from Order against the order passed by the learned Trial Court below application under Order IX, Rule 13 of the CPC i.e. dismissing the application under order IX, Rule 13 of the CPC to set aside an ex-parte decree.

Considering Order XLIII, Rule 1(d) of the Code of Civil Procedure, Appeal from Order is provided against the order rejecting an application preferred under, Order IX, Rule 13 of the CPC to set aside an ex parte decree. Order XLIII, Rule 1(d) of CPC does not provide to prefer an Appeal from Order against the order rejecting the application to condone the delay in preferring the application under Order IX, Rule 13 of CPC to set aside the ex parte decree. Therefore, the Appeal from order under Order XLIII, Rule 1(d) of the CPC against the order passed in application not condoning the delay in preferring an application under Order IX, Rule 13 of Code of Civil Procedure, is not maintainable.

So far as decision of Chhattisgarh High Court relied upon by learned advocate appearing on behalf of the appellant in the case of Laxmi Prasad (supra) is concerned, on facts, the said decision is not of any assistance to the appellant. In the case before Chhattisgarh High Court, Appeal from Order was preferred under Order XLIII, Rule 1(d) of the CPC challenging the order of dismissal of an application for setting aside an ex parte decree following rejection of application u/s 5 of the Limitation Act. Therefore, it appears that there was an order passed by the Trial Court dismissing the application for setting aside an ex-parte decree following rejection of application u/s 5 of the Limitation Act. Therefore, on facts of the present case, such decision is not of assistance to the appellant. This Court has its own doubt whether on rejection of application u/s 5 of the Limitation Act and not condoning the delay in preferring the application for setting aside the ex parte decree under Order XLIII, Rule 1(d) of the CPC of that whether any further order dismissing application to set aside the ex parte decree can be passed or not. As such this Court is of the opinion that once delay is not condoned in preferring an application under Order IX, Rule 13 of the CPC for setting aside ex parte decree, no further order is required to be passed in the application for setting aside an ex parte decree under Order IX, Rule 13 of the Code of Civil Procedure.

At this stage, the decision of Full Bench of Calcutta High Court in the case of Mamuda Khateen and Others Vs. Beniyan Bibi and Others, is required to be referred to. The Full Bench of Calcutta High Court has taken a view that order refusing to condone the delay u/s 5 of the Limitation Act is neither a decree nor an appealable order. However, the said order is revisable.

In view of the above, it is held that the present Appeal from Order under Order XLIII, Rule 1(d) of the CPC challenging the impugned order dated 20th June, 2009 passed by learned 7th Additional Senior Civil Judge, Vadodara below Exh-1 dismissing Misc. Civil Application No. 166 of 2008 in not condoning the delay in preferring the application under Order IX, Rule 13 of the CPC is not maintainable and, hence, the present Appeal from Order is dismissed as not maintainable. It will be open for the appellant to file appropriate proceedings before appropriate Court, which can be considered in accordance with law for which this Court has not expressed any opinion.

In view of dismissal of Appeal from Order as not maintainable, no order in the Civil Application. Rule is discharged.