Bombay High Court
Tejbai Tejshi And Ors. vs Gangubai Dinanath Ulvekar on 26 September, 2001
Equivalent citations: 2002(1)BOMCR109, 2002(1)MHLJ350
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
ORDER
1. This appeal was heard on September 25, 2001 when Mr. Walawalkar, Advocate for the appellants requested for time to examine the plea raised by the respondent about the maintainability of the proceedings. Accordingly, this appeal was directed to be listed today-first on board, but it has not been notified. However, both the Counsel appeared and requested the Court to take up the matter since the papers were produced in Court. The matter was thus taken up for hearing by consent when the following order is passed.
2. This appeal is directed against the order passed by Bombay City Civil Court, dated November 27, 1995 in Notice of Motion No. 2685 of 1991 in S.C. Suit No. 7318 of 1988.
3. The said Notice of Motion was filed by the appellants 2 to 5 as third party essentially for recalling the ex-parte decree passed by the trial Court dated October 31, 1990. It is not disputed that the said ex-parte decree makes specific reference to the provisions of Order 8, Rule 5 of the Code of Civil Procedure. Be that as it may, the trial Court has dismissed the subject Notice of Motion essentially on the premise that the appellants being third party had no locus to file the said Notice of Motion purported to be under Order 9, Rule 13 of the Code of Civil Procedure. According to the trial Court, only the defendant in the suit could have invoked the said provision.
4. However, before this Court the Counsel appearing for the respondent has additionally raised a preliminary point that the present Appeal From Order is not maintainable inasmuch as the original ex-parte decree passed by the trial Court is one under Order 8, Rule 5 of Code of Civil Procedure against which the appellants at best ought to have preferred First Appeal and could not have asked for recall of the same on the basis of an application under Order 9, Rule 13 of Civil Procedure Code. It is thus submitted that the application filed by the appellants under Order 9, Rule 13 of Code of Civil Procedure itself was not maintainable before the trial Court; and as necessary corollary, the present Appeal From Order will have to be dismissed on that account.
5. The learned counsel appearing for the appellants, however, tried to justify that the subject proceedings taken out by the appellants is maintainable. According to him, on perusal of the entire Roznama it would appear that the ex-parte decree passed by the trial Court could not have been passed under Order 8, Rule 5 of the Code of Civil Procedure, for the stage for passing of the decree under that provision had already passed. In support of this submission reliance is placed on the decision of this Court reported in 2001(2) .MH.L.J. 392 = 2007(3,) ALL MR 159 -- The Steamship Mutual Underwriting Association (Bermuda) Ltd. and Ors. v. Thakur Shipping Company Ltd. and Ors. and more particularly on para 13 thereof. Reliance is also placed on another decision of the Division Bench of this Court reported in 7995 (3) Mh.LJ. 924, Dhanwantrai R. Joshi v. Satish J. Dave (paras 6 and 8). In other words it is argued that this Court may infer that the ex-parte decree was not under Order 8, Rule 5 of Code of Civil Procedure but under some other provision against which application for setting aside such decree was maintainable under Order 9, Rule 13 of the Code of Civil Procedure.
6. To my mind, the moot question that arises for consideration is, when the impugned order makes specific reference to a particular provision under which the subordinate Court proceeded to pass the same, then is it open to the superior Court before which the matter is in appeal to infer that the said order is not passed under that provision but some other provision so as to justify the maintainability of the appeal filed before it? In my view, such an approach would be impermissible. If the impugned order makes reference to a specific provision under which it is purported to have been passed, then the justness and appropriateness of that order can be questioned only in the manner provided for by the provisions of the Code of Civil Procedure. Merely because the Court is a superior Court that would not permit this Court to infer a fact contrary to the one mentioned in the impugned order by the subordinate Court that it had passed the same under Order 8, Rule 5 of Code of Civil Procedure. It will be apposite to advert to the enunciation of the Apex Court in State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. Moreover, indubitably, Right of Appeal or for that matter right to file application under Order 9, Rule 13 is a creature of statute and the same can be availed only in manner and in the circumstances provided for under the said provisions.
7. In the present case, the subject order specifically records that it has been passed in exercise of provisions of Order 8, Rule 5. In such a situation, it will be impermissible for this Court, in an Appeal From Order against the order passed on Notice of Motion filed under Order 9, Rule 13 of Civil Procedure Code, to infer that the same has not been passed under that provision but some other provision, as contended on behalf of the appellants. This is not to say that the appellants have been rendered remediless against the impugned order. The remedy, as rightly contended by the respondent, is provided for by way of First Appeal. It will be, therefore, open to the appellants to take recourse to the said remedy for assailing the appropriateness of the Ex-pane Decree passed by the trial Court on October 31, 1990 in exercise of Order 8, Rule 5 of Civil Procedure Code. The question-whether in the facts of the present case the trial Court rightly invoked powers under Order 8, Rule 5 of Civil Procedure Code, can be examined only in such appeal,
8. To my mind, the decisions relied upon by the appellants are not authorities on the proposition that even if the order records that it has been passed in exercise of specific provision of the Civil Procedure Code, the superior Court may infer to the contrary that it is not passed under that provision but some other provision so as to justify the maintainability of the proceedings before it. In that sense, these authorities have no application to the fact situation of the present case.
9. In my view, it will have to be held that since the ex parte decree passed by the trial Court dated October 31, 1990 specifically records that the same has been passed in exercise of powers under Order 8, Rule 5 of Civil Procedure Code, against such a decree, the remedy is only by way of First Appeal provided for in the Code of Civil Procedure. A priori, the subject Notice of Motion filed under Order 9, Rule 13 is not maintainable; and as a necessary corollary, the present Appeal From Order which is continuation of such incompetent proceedings, would also fail. This appeal is, however, disposed of with liberty to the appellants to take recourse to remedy provided for by the law. Needless to mention that all contentions available to both the parties are left open to be decided in the said appeal.
10. A. O. disposed of accordingly, with no order as to costs. Parties to act on the copy of this order duly authenticated by Sheristedar of the Court.
11. Order accordingly.