Andhra HC (Pre-Telangana)
Gogireddy Eswara Reddy And Another vs Tangirala Hanumayamma on 22 September, 2014
Bench: K.C. Bhanu, Anis
THE HONBLE SRI JUSTICE K.C. BHANU AND THE HONBLE MRS JUSTICE ANIS CIVIL REVISION PETITION No.3822 OF 2006 22-09-2014 Gogireddy Eswara Reddy and another.Petitioners Tangirala Hanumayamma. Respondent Counsel for the Petitioners: Counsel for Respondent: <Gist : >Head Note: ? Cases referred: 1. 1996(3) ALT 365 2. 1998(4) ALT 234 THE HONBLE SRI JUSTICE K.C. BHANU AND THE HONBLE MRS JUSTICE ANIS CIVIL REVISION PETITION No.3822 OF 2006 ORDER:
(per Honble Sri Justice K.C.Bhanu) This Civil Revision Petition, under Article 227 of the Constitution of India, is filed against the Order, dated 12.07.2006, passed by the II Additional District Judge, Guntur, in Civil Miscellaneous Appeal No.28 of 2005, whereunder and whereby, the Order, dated 23.02.2005, in Interlocutory Application No.916 of 2002 in Original Suit No.88 of 2002 passed by the Senior Civil Judge, Gurazala, was set aside.
2. When the matter came up before the learned Single Judge of this Court, one of us (KCB,J), referred the matter to a Division Bench for authoritative pronouncement of Division Bench, in view of the conflicting decisions of two learned Single Judges of this Court whether against the Order dismissing the application filed under Section 5 of the Limitation Act, 1963 (for short, the Act) to condone the delay in filing any application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, CPC), revision or appeal lies. Accordingly, the matter is placed before this Court by the Honble Chief Justice.
3. Heard both sides.
4. Order IX Rule 13 CPC deals with the setting aside ex parte decree passed against the defendant. The rule enacts that where an ex parte decree is passed against a defendant, he may apply to the Court passing such decree to set it aside and if he satisfies the Court that the summons was not duly served upon him, or he was prevented by sufficient cause from appearing when the suit was called on for hearing, the Court shall set aside the decree as against him and appoint a day for proceeding with the suit. Article 123 of the Act provides to set aside a decree passed ex parte or to rehear an appeal decree or heard ex parte, the period of limitation is thirty days. Time from which period begins to run is the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. If an application has not been filed within the time prescribed under Article 123 of the Act, then the remedy of the party is to file an application under Section 5 of the Act. When an order is passed in a petition filed under Section 5 of the Act to condone the delay in filing an application under Order IX Rule 13 CPC, whether an appeal lies or Civil Revision Petition lies, is the question that falls for consideration before this Court.
5. In Divisional Engineer (Operations), APSEB (Urban), Power House, Nizamabad and others Vs. Shaik Mohammed , wherein it is held thus:
In other words, failure to condone the delay in filing the application under Section 5 of the Limitation Act tantamounts to dismissal of the petition under Order 9, Rule 13 C.P.C. by virtue of Section 3 of the Limitation Act. In effect an order passed under Section 5 of the Limitation Act would result in an order of dismissal of the petition filed under Order 9, Rule 13 C.P.C. within the strict legal sense and the mandatory consequences become appealable under Order 43, Rule 1(d) C.P.C. In such a situation, dismissal of the petition under Section 5 of the Limitation Act would become redundant to think that a revision under Section 115 of C.P.C. lies. There is one more legal logic behind this proposition. There cannot be an application under Section 5 of Limitation Act unless an application under Order 9, Rule 13 C.P.C. is filed. If merely an application under Section 5 of the Limitation Act is permissible as an original petition, perhaps then if there is no provision for appeal under Order 43, Rule 1(d) C.P.C. perhaps a revision petition under Section 115 C.P.C. may lie. In such a situation, a proper construction of Order 9, Rule 13 C.P.C., Sections 3, 4 and 5 of Limitation Act and Article 123 of the Limitation Act would conclusively and legally confirm that no revision under Section 115 C.P.C. would either lie or become maintainable.
From the above decision, it is clear that the order passed in a petition filed under Section 5 of the Act is not a revisable order. Therefore, an appeal lies against it. On the other hand, another learned Single Judge of this Court in the decision reported in Eswaraiah Vs. S.A. Gaffoor and other , wherein it is held thus:-
17. ., it can be safely concluded that disposal of an application under Section 5 of the Act is itself an independent act on the part of the Court and the order passed by the Court gives rise to a fresh cause of action to the party affected adversely to approach either the appellate Forum or the revisional Forum as provided under the Code.
Hence, it cannot be said that a party, whose application for condonation of the delay in filing the application under the provisions of the Code is left with no remedy available under law to correct the irregularity or illegality committed by the Court below.
From the above decision it is clear that only revision petition lies under Section 115 CPC against the Order dismissing the application filed under Section 5 of the Act, but not an appeal.
6. Section 96 CPC deals with the right of appeal. Sub Section (1) of Section 96 CPC enacts that save where otherwise expressly provided in the body of the CPC, or by any other law for the time being in force, an appeal is maintainable against any decree passed by a Court exercising original jurisdiction. An appeal is a proceeding taken before a superior Court for reversing or modifying decision of an inferior Court on the ground of error. Sub Section (2) provides that an appeal is also competent from an ex parte decree. A decree passed by any Court exercising original jurisdiction is subject to appeal under this Section unless it is expressly provided otherwise either in the Code or in any other law.
7. Decree as defined in the CPC, means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. To constitute a decision of Court, there must be an adjudication. Such adjudication must have been given in a suit.
8. The adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit. Such determination must be of a conclusive nature and there must be a formal expression of such adjudication.
9. Section 5 of the Act is an independent provision, where the party can make an application to condone the delay in setting aside the ex parte decree. The scheme of CPC contemplates under what circumstances the appeal can be filed against the decree and order and under what circumstances, the revision can be filed. Filing of an appeal is a statutory right where the appellate Court has got full powers to review the evidence and material on record and come to a different conclusion than the one arrived by the trial Court. Whereas in exercising the revisional jurisdiction the scope is limited and it is a truncated one. Unless the findings are illegal or perverse, ordinarily a revision is not maintainable. When a discretionary power is conferred on the Court to condone the delay, it has to be exercised by the concerned Court judiciously and reasonably. If that exercise is not made judiciously, then it can be corrected by exercising the revisional jurisdiction under Section 115 CPC. When anything is left to Court to be done according to its discretion, the law intends it must be done with sound discretion and in accordance with law. Discretion is governed by statutory provision and it must not be arbitrary, vague and fanciful. Judicial discretion is a certain latitude or liberty accorded by statute or rules to a Judge in adjudicating on matters brought before him. Such discretion order can be tested by exercising revisional jurisdiction. The exercise of revisional jurisdiction is the act of examining again in order to remove any defect or grant relief against the irregular or improper exercise or non-exercise of jurisdiction by a lower Court. Since the order impugned is against discretionary order whether to condone the delay or not under Section 5 of the Limitation Act, revision lies.
10. Section 115 CPC enacts all High Courts with revisional jurisdiction. It declares that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court wherein no appeal lies, to satisfy itself on three aspects:
(i) that the order passed by the subordinate Court is within its jurisdiction
(ii) that the case is one in which the Court ought to exercise jurisdiction and
(iii) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision.
11. It is well settled that an appeal is creature of statute and there is no right to appeal unless it is given clearly and in express terms by a legislation. In other words, a right of appeal requires legislative authority.
12. Order XLIII Rule 1 CPC contains a list of orders which are appealable. This provision has to be read with the substantive provision in Section 104 CPC as Order XLIII Rule 1 CPC is an integral part of the said Section. The term order has been defined as the formal expression of any decision of a civil Court, which is not a decree. The provisions of Order XLIII Rule 1 read with Section 104 CPC are exhaustive in nature in the sense that no appeal lies against any order not enumerated in Section 104 or Order XLIII Rule 1 CPC. No appeal lies against from orders other than the orders specified in the CPC.
13. Therefore, the view taken by the learned Single Judge of this Court in Eswaraiah Vs. S.A. Gaffoor and other (2 supra) is correct and based on the legal principles. The ratio laid down in Divisional Engineer (Operations), APSEB (Urban), Power House, Nizamabad and others Vs. Shaik Mohammed (1 supra) is not in accordance with the provisions of the CPC. Hence, the reference is answered holding that against the Order passed in a petition filed under Section 5 of the Limitation Act, only a revision lies under Section 115 CPC, but not an appeal under Section 104 or Order XLIII Rule 1 CPC.
14. Reference is answered accordingly.
Post before the learned Single Judge for disposal. _______________________ JUSTICE K.C. BHANU __________ JUSTICE ANIS Date:22.09.2014