Skip to content


Gaja Vs. Mohd. Farukh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberAppln. No. 59 of 1957
Judge
Reported inAIR1961All561
ActsCode of Civil Procedure (CPC) , 1908 - Sections 141 - Order 9, Rules 9 and 13 - Order 43, Rule 1
AppellantGaja
RespondentMohd. Farukh and ors.
Appellant AdvocateBabu Ram Gir, Adv.
Respondent AdvocateG.H. Naqvi and ;K.H. Rizvi, Advs.
DispositionApplication dismissed
Excerpt:
civil - applications for restoration - order 9 rules 9 and 13 and order 43 rule 1(c) of code of civil procedure, 1908 - appeal cannot arise by implication but only by virtue of express enactment - restoration application dismissed for default - no appeal lies from under order 9 rules 9 and 13. - .....1956. the defendant applicant made an application on the 6th april 1956 under order 9, rule 13 civil procedure code for setting aside the ex parte decree. that application was dismissed in default on the 4th august 1956. the applicant made an application on the 3rd september 1956 for setting aside the order dated the 4th august 1956 by which his application for setting aside the ex parte decree was dismissed. the learned munsif dismissed that application on the 17th september 1956. against that order an appeal was preferred to the district judge, which was disposed of by the civil judge, kheri, on the 24th november, 1956. 3. the learned civil judge, following the decisions of the allahabad high court, came to the conclusion that an appeal against an order dismissing an application.....
Judgment:
ORDER

J.D. Sharma, J.

1. This is an application in revision against an order dated the 24th November, 1956 of the learned Civil Judge, Kheri, dismissing the appeal on the ground that it was not maintainable.

2. The suit was decreed ex parte on the 6th April 1956. The defendant applicant made an application on the 6th April 1956 under Order 9, Rule 13 Civil Procedure Code for setting aside the ex parte decree. That application was dismissed in default on the 4th August 1956. The applicant made an application on the 3rd September 1956 for setting aside the order dated the 4th August 1956 by which his application for setting aside the ex parte decree was dismissed. The learned Munsif dismissed that application on the 17th September 1956. Against that order an appeal was preferred to the District Judge, which was disposed of by the Civil Judge, Kheri, on the 24th November, 1956.

3. The learned Civil Judge, following the decisions of the Allahabad High Court, came to the conclusion that an appeal against an order dismissing an application for restoration of an application for setting aside an ex parte decree under Order 9, Rule 13 Civil Procedure Code was not maintainable.

4. It is urged in revision that by virtue of Section 141 Civil Procedure Code, Order 9 is applicable to an application for restoration of an application for setting aside an ex parte decree and therefore an appeal lay under the provisions of Order 43 Civil Procedure Code- Reliance in support has been placed upon Rameshwar Dutt Singh v. Harihar , where a Division Bench consisting of Nanavutty and Smith, JJ. held that on the dismissal for default of a previous application made under Order 9, Rule 9, Civil Procedure Code for restoring a suit dismissed for default an application to restore such application lies under Order 9, Rule 9, read with Section 141 of Code and that if the aid of Section 141 Civil Procedure Code can be invoked to bring within the scope of Order 9, Rule 9, an application to restore to hearing a previous application for restoration which has been dismissed for default that same section can be invoked to make appealable under Order 43, Rule 1(c) an order which is passed upon such an application.

Reference was made to an earlier decision of the Oudh Chief Court, reported in Mt. Jamna v. Mt. Ramraji, AIR 1923 Oudh 146. On the other hand, Sulaiman, J. (as he then was) held in Chandar Sahai v. Durga Prasad, 22 All LJ 427 : (AIR 1924 All 682 (2)) that under the Civil Procedure Code no appeal is provided for from an order dismissing an application which is for restoration of an application for setting aside an ex parte decree, and a right of appeal cannot be claimed by virtue of Section 141 Civil Procedure Code when Order 43 of the Code makes no provision for such an appeal.

This decision was approved by a Division Bench in Ram Chander v. Tej Singh : AIR1929All906 . It will appear that there is a direct conflict between the views of the erstwhile Chief-Court and of this Court, but the view of this Court is in consonance with the decisions of other High Courts. A Division Bench of the Court of the Judicial Commissioner, Nagpur, held in Brijmohan v. Raghoba, AIR 1932 Nag 101 that the right to appeal is not merely a matter of procedure but one of substance.

It cannot arise by implication but only by virtue of an express enactment. Section 141 Civil Procedure Code cannot be interpreted as giving a substantive right to make an application to set) aside the dismissal of an application for restoration of a suit dismissed in default. In the absence of an express provision in the Code the right to make such applications is implied in Section 151 and the order passed thereon must be regarded as passed under that section.

Therefore no appeal lies from an order rejecting an application to set aside the dismissal of an application for restoration of a suit dismissed in default. Similar view was taken by the Pepsu High Court in Hira Lal v. Sitla Kehna, AIR 1951 Pepsu 82. There it was held that Section 141 only prescribes the procedure that would be adopted by the civil courts in dealing with matters other than suits.

This fact by itself would not give a right of appeal to a party aggrieved by an order in any proceedings such as an order refusing to restore an application under Order 9, Rule 9, Civil Procedure Code, dismissed for default. Also see Kalookhan Fazledin v. Surji Vallabhadas, AIR 1947 Bom 328 and Sadaya Padayachi v. Chinnaswami Naidu, AIR 1935 Mad 609.

5. With all respect I am in agreement with the decisions of this Court. An appeal is a substantive right and not a mere matter of procedure and unless it is conferred by Order 43, Civil Procedure Code, it cannot be inferred by implication from Section 141 of the Code. Order 43 does not provide for an appeal from an order dismissing for default an application for restoration of an application under Order 9, Rules 9 and 13, Civil P. C. No appeal therefore lay from the order of the Munsif dismissing the application dated the 3rd September, 1956.

6. The revision has no force and is dismissed. In the circumstances I make no order as tocosts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //