BHIVCHANDRA SHANKAR MORE versus BALU GANGARAM MORE & ORS.

BHIVCHANDRA SHANKAR MORE versus BALU GANGARAM MORE & ORS.

Time spent in pursuing application under Order IX Rule 13 CPC to set aside ex-parte decree should be considered as 'sufficient cause' for condoning delay in filing appeal under Section 96(2) CPC, as right of appeal is statutory and cannot be barred merely for pursuing another remedy. Remedies may be pursued consecutively depending on facts and absence of dilatory tactics.

Parties
Appellant: Bhivchandra Shankar More; Respondents: Balu Gangaram More & Ors.
Jurisdiction
India
Judgment Date
07 May 2019
Procedural Posture
Civil Appeal / Appeal Against High Court Decision in Writ Petition
Outcome
Appeal allowed
Legal Topics
Condonation of Delay, Ex Parte Decree, Partition Suit, Right of Appeal
Civil Procedure Condonation of Delay Ex Parte Decree Partition Suit Right of Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Bhivchandra Shankar More

Appellant

Balu Gangaram More & Ors.

Respondents

Procedural Posture

Civil Appeal / Appeal Against High Court Decision in Writ Petition

Legal Issues

  1. 1 Whether the time spent in proceedings taken to set aside an ex-parte decree constitutes 'sufficient cause' for condoning delay in preferring an appeal against the ex-parte decree on merits
  2. 2 Whether regular appeal under Section 96(2) CPC is barred when an application under Order IX Rule 13 CPC has been dismissed on merits

Ratio Decidendi

Time spent in pursuing application under Order IX Rule 13 CPC to set aside ex-parte decree should be considered as 'sufficient cause' for condoning delay in filing appeal under Section 96(2) CPC, as right of appeal is statutory and cannot be barred merely for pursuing another remedy. Remedies may be pursued consecutively depending on facts and absence of dilatory tactics.

Court Disposition

Appeal allowed

Orders

  • Impugned judgment dated 20.08.2014 of the High Court in WP No.3290 of 2014 is set aside.
  • Delay in filing appeal against the ex-parte decree in Regular Civil Suit No.35 of 2007 is condoned.