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Sanjay Kondaji Dighe And Another vs Roshan Yakub Shaikh And Others on 30 June, 2023 cites

Rani Choudhury vs Lt. Col. Suraj Jit Choudhury on 24 August, 1982

In the contexxt of the Explanation to Order 9 Rule 13 of the Code, the question was squarely considered by this Court in Rani Choudhury case. The High Court, in our view, has rightly held that the decision of this case is directly covered by the that decision. Therein, the plaintiff, the wife, obtained an ex parte decree for divorce against the husband, the defendant. The husband preferred an appeal in the High Court against the decree and also made an application under Section 5 of the Limitation Act for condoning the delay in filing that appeal. The High Court dismissed the appeal as being time- barred. The husband, the defendant, then filed a petition under Order 9 Rule 13 of the Code for setting aside the ex parte ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:23:32 ::: 49 sa 24.2023+ decree along with an application under Section 5 of the Limitation Act. The trial court dismissed the application holding that no sufficient cause was made out for condoning the delay in filing the petition under Order 9 Rule 13 of the Code. The husband filed a civil miscellaneous appeal in the High Court challenging the said order of the trial court. The High Court took the view that the Explanation to Order 9 Rule 13 of the Code did not create a bar to the maintainability of the petition under that rule as the appeal against the ex parte decree had been dismissed not on merits but on the ground of limitation by not accepting the application for condonation of delay which meant that no appeal was preferred in the eye of the law. This view of the High Court was challenged in appeal before this Court. It was argued that the High Court has misunderstood the scope and ambit of the Explanation to Order 9 Rule 13 of the Code and that in the circumstances, the High Court should have held that the petition under Order 9 Rule 13 of the Code would not lie. This Court accepted that contention. This Court held that where there has been an appeal against an ex parte decree and the appeal has not been withdrawn by the appellant and had been disposed of on any ground, the application under Order 9 Rule 13 of the Code would not lie and should not be entertained. Hence, even though the appeal against the ex parte decree was disposed of on the ground of limitation and not on merits, the Explanation to Order 9 Rule 13 of the Code was attracted and hence no petition under Order 9 Rule 13 of the Code would lie. On the scope of the Explanation, it was stated that the disposal of the appeal as contemplated in ::: Uploaded on - 03/07/2023 ::: Downloaded on - 04/07/2023 06:23:32 ::: 50 sa 24.2023+ the Explanation was not intended to mean or imply a disposal on merits resulting in the merger of the decree of the trial court with a decree, if any, of the appellate court on the disposal of the appeal. The disposal of the appeal may be on any ground and though the withdrawal of an appeal by an appellant is also to be considered a disposal of the appeal, the same has been expressly exempted by the Explanation. It was also observed that the legislative intent incorporated in the Explanation to Order 9 Rule 13 of the Code was to confine the defendant to a single course of action and to discourage the prolonging of the litigation on the ex parte decree, namely, by preferring an application to the trial court under Order 9 Rule 13 of the Code for setting aside the decree and by filing an appeal to a superior court against it. If he did not withdraw the appeal filed by him or allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Order 9 Rule 13 of the Code. The Court also clarified that by the introduction of the Explanation, the area of operation of the doctrine of merger was enormously extended. By virtue of the Explanation, the disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the bar into operation. In the light of this, it was held that though in that case the appeal filed by the husband against the ex parte decree was dismissed on the ground of it being barred by limitation, it was a disposal of the appeal and the petition under Order 9 Rule 13 of the Code was hit by the Explanation.
Supreme Court of India Cites 10 - Cited by 109 - R S Pathak - Full Document
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