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Pakari Pramanik and ors. Vs. Sarat Sundari Debya and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in37Ind.Cas.835
AppellantPakari Pramanik and ors.
RespondentSarat Sundari Debya and ors.
Excerpt:
civil procedure code (act v of 1908), order ix, rule 13 - order rejecting application to set aside ex parte decree, whether appealable--appeal. - .....was rejected on the ground that the said defendants did not appear in support of it. against that order of rejection, the defendant no. 2 appealed to the district judge. the district judge set aside the order rejecting the application and directed the court of first instance to hear it on its merits. the present rule was obtained on the ground that the learned district judge had no jurisdiction to hear an appeal from an order rejecting an application made under order ix, rule 13, of the code when it was dismissed for default. no such limitation can be placed upon the right of appeal given by order xliii, rule 1 (d), civil procedure code, in the case of the rejection of an application made under order ix, rule 13. it seems to me that the learned district judge clearly had.....
Judgment:

Fletcher, J.

1. This Rule was issued calling on the opposite party to show cause why the order of the District Judge complained of should not be set aside on the ground that no appeal lay to him. The plaintiffs brought a suit to enforce a mortgage security, and obtained an ex parte decree. Under the provisions of Order IX, Rule 13, Civil Procedure Code, the defendant No. 2 applied to have the ex parte decree set aside. That application was rejected on the ground that the said defendants did not appear in support of it. Against that order of rejection, the defendant No. 2 appealed to the District Judge. The District Judge set aside the order rejecting the application and directed the Court of first instance to hear it on its merits. The present Rule was obtained on the ground that the learned District Judge had no jurisdiction to hear an appeal from an order rejecting an application made under Order IX, Rule 13, of the Code when it was dismissed for default. No such limitation can be placed upon the right of appeal given by Order XLIII, Rule 1 (d), Civil Procedure Code, in the case of the rejection of an application made under Order IX, Rule 13. It seems to me that the learned District Judge clearly had jurisdiction to hear and dispose of the appeal. This Rule, therefore, must be discharged with costs one gold mohur.

Richardson, J.

2. I agree.


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