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Banchhanidhi Satpathy and anr. Vs. Ghanashyama Satpathy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 224 of 1969
Judge
Reported inAIR1972Ori9
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13 - Order 17, Rule 3
AppellantBanchhanidhi Satpathy and anr.
RespondentGhanashyama Satpathy
Appellant AdvocateRanjit Mohanty, Adv.
Respondent AdvocateA. Mohanty, Adv.
DispositionRevision dismissed
Cases ReferredBaidhar Behera v. Pranabandhu Maharatha
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........on them. in this view of the matter he said that the defendants were to begin. subsequently, the defendants filed a petition for time on the ground that their main witness was ill. the learned munsif noticed that the defendants had given hazira of five witnesses who were in attendance in court. in those circumstances the prayer for adjournment was rejected and the defendants were directedto get ready. subsequently, the defendants did not turn up. the plaintiff led evidence and an ex parte decree was passed. an application was filed to set aside the ex parte decree under order 9, rule 13, c.p.c. the application having been rejected, an appeal was filed which was also dismissed. against the appellate order, the civil revision has been filed,2. order 17, rule 3. c.p.c. clearly applies to.....
Judgment:
ORDER

G.K. Misra, C.J.

1. On 28th March 1968, both the parties filed hazira. Counsel of both the parties were heard as to who would begin first. Since the defendants had set up a plea of adoption, the Court held that the onus to prove adoption lies on them. In this view of the matter he said that the defendants were to begin. Subsequently, the defendants filed a petition for time on the ground that their main witness was ill. The learned Munsif noticed that the defendants had given hazira of five witnesses who were in attendance in Court. In those circumstances the prayer for adjournment was rejected and the defendants were directedto get ready. Subsequently, the defendants did not turn UP. The plaintiff led evidence and an ex parte decree was passed. An application was filed to set aside the ex parte decree under Order 9, Rule 13, C.P.C. The application having been rejected, an appeal was filed which was also dismissed. Against the appellate order, the Civil Revision has been filed,

2. Order 17, Rule 3. C.P.C. clearly applies to this case. It has been held in Baidhar Behera v. Pranabandhu Maharatha, (1965) 31 Cut LT 871 that where the advocates commenced hearing of a case it would not be one under Order 9. Rule 13. C.P.C. It cannot be described to be an ex parte proceeding. The reported case is directly applicable to the facts of this case. It will be contrary to common sense to hold that a party was ex-parte when the advocate appearing for the party argued the case on a point of law and the Court save a decision on the argument and asked the defendants to begin with evidence.

3. That apart, even assuming that Order 9. Rule 13, C.P.C. is applicable, no sufficient cause is made out for the defendants not taking part in the proceeding. Either way, there is no merit in the application which was rightly rejected.

4. The Civil Revision fails and is dismissed but in the circumstances without costs.


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