RANI CHOUDHURY versus LT. COL. SURAJ JIT CHOUDHURY

372

RANI CHOUDHURY

v.

LT .. ,coL. SURAJ JIT CHOUDHURY

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August 24, 1982.

[R.S. PATHAK AND AMARBNDRA NATH SEN. JJ.J

Interpretation of"Exp/anation" in a statute-Explained,

Maintainability of an application undtr Rule 13 of Order I~, lfhen an appeal preferred under section 96 Civil Procedure Code with an application under .dismissed-Scope of. Rule 13 of stction 5 of the Limitation Act has been Order IX, C.P.C.-Words & Phrases--"On any ground_ other than the ground.that the appellant has withdrawn the appeal", meaning of.

The appellant wife filed on 1.9;1979, a petition under section 13 of the Hindu Mar-.:iage Act, against the respondent for dissolution of her marriage with him and for a dCcree for divorce." The next date o( bearing was fixed for 6.12.1979. On J0.11.1979, the respondent husband bad addressed a letter to tbe court requesting the court f~r an adjournment of the case fi.7t:ed for 6.12.1979 on the ground that because of special assignment it would not be possible for'him to be present in Court on that day. On that date, the court ~efused to grant the adjournment and passed an ex-parte decree in favour of the appellant.

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The respondent husband, thereafter preferred an appeal under section 96 of the Civil Procedure C~de before the High Court with an application under section 5 of the Liniitation ·Act to condone the delay in filing. The High Court dismissed the condonat1on ~application as well as the appeal. Thereafter the respondent husband moved the Trial Court with an application under Rule_ 13 of Order IX with an application under section 5 o.f the Limitation Act. ·Both the applications were dismissed. The "respondent husband moved the High Gourt against the said orders of dismissal which was accepted rejecting the contention_ of the appellant wife that the newly added Explanatio·n to Rule 13 of Order IX C.P.C. is a bar to the maintainabilily of the application itself filed by the respondent ~usband' under that Rule. Hence the appeal by the appellant wife, after obtaining special leave of the Court.

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Allowing the appeal the Court,

HELD :~Per Pathak, J.

(Concuning with A.N. Sen, J.)

I. No doubt the provision is described :is' an 'Explanation', but it is not the Its truQ

ni\>ri9 which decisivelr1detln~~ tJl~ trµ~ liature of a statutory provision.

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RANI CHOUDHURY v. SURAJ JIT SINGH (Pathak, J.)

373

nature must be determined frorii the con°tent of the provision, its import gathered from the language 'employed, and the language construed in the context in which the provision has been enacted. What was the law before the amendment, what was the ~ischief and defect for· which the law did not provide, what remedy has Parliament resolved and appointed tb cure the mischief, ai;id the true reason of the remedy. [376 E·G, 377 A-BJ

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RUie in Heyd on' s case, 16 English Reports 637; Swant raj & Ors. v: State

of Maharashtra [1974],3 SCR 287, followed.

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2:1. The Code of Civil Procedure (Amendment) Act, 1976 was enacted· with the avowed purpose of abridging and simplifying the procedural la~. Prior to it a defendant burdened by an ex-parte· decree could apply to the trial court under Rule 13 of Order IX C.P.C. for setting aside· the decree: He could alsO appeal under section 96 against' the decree. The mere, filing of the appeal did not take away -the jurisdiction of the trial court to entenain and dispose of It was where the appeal was application for setting aside the ex~parte decree. disposed of, and the appellate dCcree superseded the trial court decree by revera ~ing, confirming or _varying it that the trial court could not proceed to set aside to have ~erged with its ex-parte decree. For the trial court. decree was said ·~the appellate decree. Prior. to the Amendment Act, the courts were open to a duplication of proceedings, and although the ·immediate relief claimed in the two proceedings was not identical both ultimately aimed at a redecision on the merits. The earlier disposal of either resulted in the other becoming infructuous. The plaintiff, therefore, was in the unfortunate position of being dragged through two courts in simultaneous procee~ings. (376 A-C, 377 C-D]

2:2.

.Public time and private convenience and money was sought. to be saved by enacting the Explanation. By enacting the Explanation, Parliament left it open to the defendant to apply under Rule J 3 of Order IX for setting aside an ex-parte de_cree only if the defendant had opted n~t to appeal against the ex~ parte decree or. in the ca.se where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appea_I was tantamount to effai;ing it. It obliged the defendent to decide whether he would prefer an adjudi('.ation by the . appellate coUrt on the merits of the decree or have the-decree set aside by the · trial court under Rule 13 of Order IX. The legislative attempt- incorporated in the Explanation was to discourage a two-pronged attack on the decree and to coafin·e the defendant to a single course of aCtion .. If he did not withdraw the appeal filed by him, but allowed the appeal to be qisposed of on any other ground, - he was denied the right to apply under r. 13 of Order I~. The disposal of the appeal on any ground whatevtr, apart from the withdrawal, constituted sufficient reason for bringing the ban. into operation. [377 o.o, 378 A] -

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In the present case, the appe.al was dismissed as barred by limitarion

and the order w.is one disposing of the appeal on Qny other ground. [378 A]

M/s. Mela Ram & Sons v. Com1nis$io11er of J~ome~t4x1 (1956] S.C.R. 166,

'followed.

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374

SUPREME CQIJRT REPORTS

[1983) J S.C.R

Per Amartndra Nath Sen, J.

1:1. A proper interpretation of the Explanation, makes it clear that where there has been an appeal against an ex-parte decree and the appeal has not been withdrawn by the appellant and has been disposed of any ground, thC application uader Rule 13 of Order IX of the Code of Civil Procedure will not lie and cannot be entertained. [384 G-H]

2:2. The words used in the Explanation are clear and unambigious. The language used in the Explanation makei.; it clear that the withdrawal of the appeal is considered to be disposal of the appeal, as contemplated by the Explanation.· Though an appeal may be disposed of on very many grounds, the Legislature has thought it flt to provide in the Explanation that only when an appeal against an ex-parte decree is diSposed of on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of an application under Order IX, RuJe 13 of the Code for setting aside the ex-parte decree will not apply. The Le8islature must be presumed to know that there are various ways of disposal of an appeal and that in all other cases of the disposal of the appeal on any other ground than the ground of \'11ithdrawal of the appeal, there -will be a bar tc• the maintainability of the applicattion under Order IX, Rule 13 and no application wilt lie for setting aside the ex-parte decree. Withdrawal of appeal by an appellant does not result in any adjudication on merits. Even, then, the withdrawal of an appeal is still considered to be a disposal of the appeal, but not creating a bar for the· maintainability of the application under Order IX Rule 13. [383 E, 384 B-GJ

1:3. In the iD.atant case, the appeUant had not withdrawn the appeal. His application for condonation of delay was rejected by the High Court and there fore, the appeal was dismissed on the ground of limitation.· The appeal filed against the ex-parte decree was, therefore, disposed of on grounds other than the ground of withdrawal of the appeal. The application under Order IX, Rule 13, after tke disposal of the appeal, therefore, became incompetent. [385A-B]

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2:1. The words used in the Explana,tion make it abundantly clear that the Explanation is not intended to disposal of the appeal as contemplated in mean or imply disposal in merits resulting in the merger of the decree of the Trial Court with the deeree, if any, of th(l Appellate Court on the disposal of the !ppeal. The Explanation speaks of "the appeal has been disposed of an any ground other thail the ground that the appellant has withdrawn the appeal" and these words make it abundantly clear that disposal of the ~ppeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal; and, the disposal of the appeal from the ex-parte decree on the ground of withdrawal of the appeal by the appellant bas only been exempted from the operation of the Explanation. If the intention was that the Explana tion would not be attracted dnd there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the nief8er of ~h() ~ecree of the Trial Court with the decree of the

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RANI-CHOUDHURY v. sURAJ m SffGH (Pathak, J.)

. 375

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the Appellate-Court, it would not haVe been necessary to provide specifically that the disposal of an appeal on the ground 'Of withdrawal would be exempt, because the disposal of an appeal on the grollnd of withdrawal would not be disposal of the appeal witQ.io the meaning of the Explanation, as on the with drawal of an appeal there is no decision on merits and there is no merger of the decree with any· decree of the Appellate Court. The legislature could also have simply provided in the Explanation for the disposal of an appeal on merits and it would not have been necessary to use the other words, "on the disposal - of an that the a11pellaat has withdrawn appeal on any ground othC:r than the gr,0und the appeal. The words used, "disposal of the appeal on any ground othCr than the ground that the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposa1 of an appeal on the ground of the same being dismissed for non.prose~ution, though-in the case of such disposal of the appeal there will be no effective ·adjudication of the at)peal on merits and the disposal of the appeal may not have the effect of the decree of the trial ·court appealed against being merged with any decree of the J\ppellate Court on the disposal of the appeal. (390 D-H, 391 A-CJ

' · 2:2. The disposql of an appeal on the ground of limitation may or may not be adjudication on the merits Or the appeal, depending on the particular facts and circumstances of the case and may or may not result in . the merger of the decree of the Trial Court with if any, of the a~pellate Court; but there cannot be any manner of doubt that when an appeal from the e:i·parte de~rce is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the aDpellant , bas withdrawn the appeal. As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the grOuod of the withdrawal of the appeal by the appellant, the Explanation is attracted, and the application for setting aside the ex·parte decree becomes incompetent aft'Cr the disposal of the appeal and·cannot be entertained. [391 CF]

the decree,

Chandri Abdul Majid v. Jawahar Lal, A.LR. 1914 P.C. 66: Kalumuddln Ahmad v. Eidhakuddin & Ors., A.LR. 1924 Cal. 830; discussed and held inappl!: cable.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5 (N)

of 1982.

(From the Judgment and Order dated the 14th September, 1981

of the High Court of Delhi at New Delhi in F.A. No. 29 of 1981)

So/i J. Sorabjee, A. Minocha, M;s, Veerna Minocha and

Dr. Roxna Swamy, for the Appellant.

Rnmeshwar Nath for the Respondent.

The Judgment of the Court was delivered by

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376

SUPREME COURT REPORTS

(1983) I s.c.r< •.

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·_PATHAK, J.

I agree that the ~ppeal must succeed.-

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The real _question . is whether the. Explanati~n(') to i. 13 of • 0. 9 oJ the Code' of Civil Procedure bars the appeal filed by the res pondent against the ex. parte decree. . The Explanation was ' enacted by the Code of_ Civil Prncedure (Amendment) Act; 1976 with _effect from February_· 1, 1977.: Prior. to· its enactment, ·a_ defendant . burdened by an ex parte decree could .. appfy to the trial court under .. . r. 13 of 0. 9 for selling 'aside the decree. He could also appeal under s, 96 against the decree.· The mere filing of ·_the appeal did . not take away the jurisdiction of the trial court' to entertain . and . dispose of the application for· setting aside the. ex parte. decree. It was-where the appeal was disposed· of, and the appellate decree, - superseded the trial court decree by reversing, confirming or varying it that . the trial court . could not proceed . to . set 'aside . its ex parte decree. For the trial court decree was said t~ have merged with the appellate decree. There are of course cases where the trfal cou~t decre~ · does_ not merge ' with the /appellate decree.' Such . instances arise _when the appeal is dismissed in· default, or.· where-. it_ is dismissed >s having abated ·by reason of. the omission of the · · 'appellan~ to implead the legal representatives of a deceased respon ·So th tre dent o_r where it is ,dismissed. as· barred by limitation. ·.a limited area where the trial, court decree merges in the appellate

It was a limited

decree. and when that takes:_ place an application before the' trial . c-ourt for setting aside-the decfee loses all meaning. area defined by the operation of the. doctrine of merger. From . February I, 1977 the area was extended enormously. With the ·,EXplanatio.n in operation, no application for setting ·aside, an ex parte I decree can lie where the defendant has . filed an appeal and the" appeal has been disposed of on any ground other than. the" ground . that the ap)ieal has been withdrawn by the appellant. No doubt the .·provision iS describCd as.an "Expla_natio:n'', b~t as is well knoWn it.is not the rubric which decisively defines the true. nature of a s'tatutory provision. Its true nature must . be 'determined from'- the content of the- provision, ils import gathered from the· language in which the employed, and the language construed in the context

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(l} '.'Where there' has been ~n appeal again~t a ,decree passed ex parte ·under this ·ru1e, and the appeafhas been disposed of on anY ground other than the grouiid that· the appeJlant h~s withdra~n the appeal, on' 3.pplication shat~ Jie1 under this rUle for Setting ·aside th3.t ex parte ' decree.''

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RANI CHOUDHURY .v. SURA! HT SINGH (Pathak, J,)

377

the present case, .the· rule

provision has been enacted. in In Heydon's case,(') approv~d of and applied by this Court.in and many other Swantraj & Ors. v. State of MaharaJhtra(') cMes, is attracted. ,What was the law before the amendment, what was the mischief and defect for which .the law did not provide, what.remedy has Parliament reso1ved and appointed to ·cure the mischief, and the true reason of the remedy.

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It has been observed earlier that a defendant intending to avoid an ex parte decree could. apply to the trial court for setting it aside and could also appeal to a superior court against .it. The· courts were open to a duplication of proceedings, and although the immediate relief claimed in the· two proceedings was not identical both ultimately aim.ed at a redecisio_n on the merits. M~'reover, on the two proceedings initiated by the defendant, the· application under r. 13 of o. 9 would subsequently become infructuous if the appeal resulted in a decree superseding the . trial court decree. It was also possible to envisage the .appeal becoming infructuous if the trial court decree was set aside on the application under r. 13 of 0.9 before the appeal was disposed of. The plaintiff was in the unfortunate position of being dragged through two courts in simul taneous proceedings. Public time and private convenience and money was soilght to be saved by enacting the Explanation. The Code of Civil Procedure (Amendment) Act, 1976 was enacted w-ith the avowed purpose of abridging and simplifying the procedural law. By enacting the Exp\ana\ion, Parliament left it open to the defen· dani to apply \lDder r. 13 of 0. 9 for setting aside an ex parte decree only if the def~ndant had opted not" to appeal against the ex parto decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was tantamount to effacing it. _It obliged "the defendant to decide whether he would prefer an adjudication by the appellate ·court on the merits of the decree or have the decree. set aside by the trial court under r. 13 of 0 9~ The legislative attempt incorporated in the Explanation wnto discourage a two-pronge<) attack .Jin the decree and to confine• the defendant to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to he disposed of ·on any other ground, hi;_ was denied the right to

.(!) 76 ER 637. (2) [1974) 3 SCR 287.

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378

SUP~EME (;OURT REPORTS

_ (1983] 1 s.c.R.

apply under r. 13 of 0.9. The 5lisposal of the appeal on any ground whatever, apart from its withdrawal, constituted ·sufficient reason for bringing the ban into operation.

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In the present case, the appeal was dismissecj as barred by· limitation. That it was an appeal even though barred by time is clear from M/s. Mela Ram & 'Sons v. Commissioner of Income-tax,(') where Venkataram Ayyar, J., speaking for the court, after referring to Nagendranath Dey v. Suresh Chandra Dey,( 2 ) Raja Kulkarni and Ors. v. The State of Bombay(') and Promotho Nath Roy v. W.A. Lee(') held that "an appeal presented out of time is an .appeal, and an order dismissing it as time-barred is one passed in appeal." There can be' no dispute then that in law what the respondent did was to file an appeal and that the order dismissint: it as time-barred was one disposing of the appeal.

Accordingly, the appeal is allowed, the judgment and order passed by the High Court are set aside and the ex parte decree passed in favour of the appellant is restored. There is no order as to costs.

AllARENDRA NATH SEN, J. Whether the dismissal of an appeal against an ex parte decree on the ground that the appeal is barred by limitation attracts the, provisions contained in the Explanation in O. 9, R.13 of the Code of Civil Procedure and creates a bar to the maintainability of an application under 0. 9, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, is the question which falls for determination in this appeal by special leave granted by this Court.

The question arises in the following circumstances :-

The appellant filed a pe.tition ·against the respondent under S. 13 -of the Hindu Marriage Act for the dissolution of her marriage with respondent and for a decree of divorce. The said ·petition was filed by the appellant on 1-9-79 and the appellant obtained an ex-

Ol (1956] s.c.R. 166. (2) 5911.A. 283, 287. (3) (1954] SCR 384, 388. (4) AJ,R.1921Cal.415.

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RANI CHOUDHURY v. SURA! !IT SINGH (Pathak, J.)

379

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parte decree on 6-12-1979. It appears that on 10-11-79 the respon dent husband had addressed a letter to the Court requesting the Court for an adjournment of the case fixed on 6-12-1979 on the ground that because of special assignment it would not be possible for him to be present ·in Court on that .day. The Court refused to grant an adjournment and· on that date an ex- parte decree for divorce was passed in favour of the appellant. The respondent husband preferred an appeal against the ex-parte decree in the High Court. As the appeal had b.een filed in the High Court beyond time, the respondent husband also made an application under S. 5 of the Limitation Act for condonation of delay in filing the appeal. lly its Judgment and order dated 17-3-1981, the High Court dismis sed the application for condonation of delay, holding that no sufficient cause for coridonation had been made out. The High · Court by the same order and Judgment also dismissed the appeal holding~"the appeal being barred by time is dismissed". The respondent moved an application before the Trial Court under 0. 3, rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree. The respondent bad aiso moved an application under S. 5 of the Limitation Act for condonation of delay in making the application under 0.9, rule 13 of the C.P. Code. The learned Trial Judge held that no sufficient cause had been made out for condonation of delay and in that· view of· the !natter the iearned Trial Judge dismissed both the applications. Against the order of the Trial Judge, the respondent filed an appeal in the High Court . . The main contention of the. husband, the appellant in' the High Court, was that the Trial Court was in error in coming to the con clusion that no sufficient cause for condonation of delay had been made out and the Trial· Court had also erred in n()t setting aside the ex-parte decree as there was sufficient cause for non-appearance of the husband on the date fixed for the hearing of the petition for divorce. On behalf of the wife, the respondent in the appeal before the High court, it was urged that the Trial Court was clearly right on merits in coming to'the conclusion that no sufficient cause had been made out for eondonation of delay and for· setting aside the decree and it. was further urged that in view of the provisions con tained in the Explanation in Order 9, rule l3 of the Code of Civil Procedurn, the application for setting aside the ex-parte decree was not maintainable, as the appeal preferred by the husband against the ex·parte decree had already been dismissed by the High Court. The High Court for reasons recorded in its Judgment dated 14.9.1981

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came to the conclusion that sufficient cause had been made out by the husband for condonation of delay in presenting the applica tion under 0. 9,. rule 13 beyond the prescribed time, that sufficient ·cause had been made out by the husba1nd for his non-appearance at the hearing of the petition on 6-12-1979 when the ex-parte that the Explarn:tion fo decree for divorce was passed and Order IX, rule 13 did not create any. bar to the maintainability of th~ application und_er Order 9, rule 13, as the appeal against the ex-parte decree had been dismissed not on merits but on the ground of Limitation. The High Court held : "Thus I am of the view that the disposal of an appeal ·against the ex-parte decree. means disposal ori merits for debarring the defendant applicant from .. filing or continuing an application for setting aside the ex-parte If an application for decree under Order 9 rule 13 of the Code. condonation of delay in filing apppeal bas not been accepted it means no appeal was preferred in law and dismissal of appeal as barred by. time would not be disposal of the appeal as contemplated under Explanation I; therefore, hold that the appellant's application under Order 9, rule 13 of the Code of Civil Procedure is maintainable" .

to Order 9 rule 13 of. the Code.

. · Against the Judgment and order of the High Court this appeal has been preferred by the wife with special leave granted by this Court.

The main contention raised on behalf of the appellant is that on a true interpretation of the Explanation in Order 9, rule 13 of ihe . Code of Civil Procedure the application for setting aside the ex parte decree must be held to be incoinpeten't and not maintainable. It has been urged that the High Court erred in holding that the Explanation did not impose any bar to the maintainability of an application in a case where the appeal is not dismissed on merits. The argument it that the said interpretation by the High Court is wrong and is clearly unwarranted by the plain language used in the Ii is urged that it is not right to hold that when an said Section. appeal is filed be,yond time and is dismissed on the ground of limita tion, there is .no appeal in the eye of law and therefore, no disposal of an appeal as contemplated in· the Explanation. The learned counsel has submitted that tbc' decisions of the Privy Council in the case of Chandri Abdul Majid v. Jawahar Lal (') and of the Ca!Cutta High

(I) AIR 1914 P. C. 66.

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RANi CHOUDHURY v. SURAJ JIT SINGH (Pathak, J.)

- 381

Court in the case of Kalumuddin Ahmed v. Esabakuddin.& Ors.('J are· of no assistance interpreting the provisions contained in· the ;-Explanation. in Order 9, rule 13 of the Code of Civil Procedure.

in

The learned. Counsel has further submitted that the High Court went wro~g in the findings of the Trial interfering with Court that no sufficient cause·h1d been made out for condonation _ of delay in filing an application under Order 9, rule 13 of the Code and in any event there is no justifiable reason for n~n-appearance of the respondent on the due date for the bearing of the matter.

On behalf of the respondent-husband, it bas been u~ged that on a true interpretation of the Explanation, the High Court bas correctly held that the Explanation will not apply to a case where the appeal preferred against an ex-parte decree is dismissed not on merits bui on the ground of limitation. Jt is the argument of the learned counsel that the Explanation will only apply when the appeal is dismissed on merits, as in such a case the decree of the Trial Court gets merged with the decree of the appellate Court and ·naturally the trial Court 'loses its competence to set' aside the ex-parte ~ecree which was originally passed by the trial court, but has subsequently merged in the' decree passed by the appellate court. The learned counsel argues that the Explanatfon _seeks to embody the principle that when a decree of the Trial Court gets merged in the decree of the appellate couri, the Trial Court loses seisin over the matter and becomes incompetent to deal with It is his argument that as in the the appeal was dismissed on the grou~d of limit~tion instant case and not on merits, there is no question of any merger of tbe decree of the trial court with any decree of the appeHate court. He argues thct an appeal· preferred beyond time, U!lless delay in filing the incompetent and 'is indeed no appeal app~al is condoned, becomes the two decisions of the-Privy Council in Chandri Abdul Majid (supra) and Ka/imuddin Ahmed (supra), considered by.the High Court in its judgment.

" in fhe eye of law. He has placed reliance -on

- a decree of the appellate court.

The learned counsel further argues that in the facts and cir cumstances of this case, the High Court was perfectly justified in holding that sufficient cause was made out for not making the appli-

(I) AIR 1924 Cal. 830.

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382

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cation under Order 9, rule 13 within the time prescribed and for con doning the delay in making the application, and the High Court was also clearly justified in coming to the conclusion that the respondent husband was prevented by sufficient cause for not being. able to llppear on the date fixed for hearing. He submits that in any event this Court in this appeal should not interfere with these findings of · 'the High Court in the larger intere•t of the administration of justice and this Court should not deprive the husband of the opportunity of contesting the claim of the wife.

The principal question as to wheiher. the application made by the husband for setting aside the ex-parte decree is competent or not in view of the provisions contained in the Explanation in 0. 9, rule 13 of the Code of Civil Procedure turns on a proper interpreta tion of the Explanation. Order 9, rule 13 of the Code of Civil Procedure reads as follows :

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' "In any . case m which a decree 1s passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set aside; and if he ·satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for bearing, the Court shall make ·an order setting aside the decree as against him upon such terms a.s to costs, payment into Court or otherwise as it thinks fit, and shall appoint a d11y for proceeding with the suit;·

Provided that where the decree is of such a nature that it cannot be set aside as against r.ucb defendant only it may be set aside as against all or any• of the other defendants also :

Provided further that no c011rt.shall set aside a decree passed ex·parte merely on the ground that there bas been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim:

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RANI CHOUDHURY v. SURA! JIT S!Nyll (Pathak, J.)

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Explanation :-Where there has been an appeal against a decree passed ex-parte under this· rule; and the appeal has been disposed of on any ground other than the ground that the appellant has . withdrawn the appeal, no applica tion.shall lie under this rule for setting aside that ex-parte de,cree."

Order 9, rule 13 makes prevision for the setting aside of an ex·· parte decree against the defendant. It lays down the conditions and also the procedure for the setting a~ide of an ex-parte decree. The Explanation was introduced into this provision by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) and it has.come into force from 1.2.1977. The proceeding by the· wife was initiated on l.9.1979 and the ex parte decree of divorce in her favour was passed on 6.12.1979. The application by the husband bas .been· mad~ for setting aside this ex parte decree. The Explana tion, therefore, operates; the real question being whether in the facts and circumstances of this case, the bar created by the Explanation to the setting aside of an ex-parte decree is attracted to the present application.

A plain reading of the Explanation clearly indicates that if any appeal against an ex-parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex-parte. decree under Order 9, rule 13 of the Code will be entertained. The words used in the Explanation are clear and unambiguous. The language used in the explanation clearly suggests that where there bas been an appeal against a decree passed ex-parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under. Order 9, rule 13 of the Code fat setting aside the ex parte decree. An appeal may be disposed of on various grounds. It may be disposed of after proper hearing on merit• and this is usually the normal way of disposal of an appeal. An appeal may be disposed of also for non prosecution thereof. Though the dismissal of an appeal on the ground of non l'rosecution of the same is not disposal of the appeal on merits, yet the dismissal of the appeal for non-prosecution results in the disposal thereof.. An appeal may also be dismissed on the grcund of limitation, if condonation of delay in filing the appeal is not allowed by the Court. An ·appeal may: also be liable to be dismissed for non compliance with any condition relating to

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the filing of !he appeal and also for other reasons. An appellant is also entitled to withdraw the appeal and the withdrawal of the appeal also results the disposal of the appeal, though in such 'a case no merits of the appeal are adjudicated upon. The language . used the withdrawal to be disposal of the appeal, as of an appeal is considered It is significant to note that contemplated in though an appeal may be disposed of on very many grounds the Legislature has tbought it fit to provid ~ in the Explanation that only when an appeal against an ex parte decree is disposed of on the ground. that the appellant has withdrawn the appeal, the bar created to the maintainability of an application under Order 9, rule 13 of the Code. for setting aside the ex parte decree will no.I apply. The Legislature must be presumed to know that there are various ways of disposal of an appeal. The legislature has, however, thought it fit to provide that when an. appeal has been preferred against an ex pa rte decree, the disposal of the appeal on any ground excepting the solitary ground of disposal of the appeal by with drawal of the same by the appellant, will create a bar to the main tainability of an application- under Order 9, rule 13 of the Code of Civil Proced~re. By specifically providing in the Explan~tion that the disposal ·of any apreal from the ex parte decree on any ground . other than the solitary ground of withdrawal of the appeal by the appellant, the legislative intent is made manifestly clear that in all other cases of the disposal of the appeal on any other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under Order 9, rule 13 and no application will lie under Order 9, rule 13 for the setting aside of an ex•parte decree .. Withdrawal of an appeal by an appellant does not result in any adjudication on merits. Even then, the withdrawal of an appeal is still considered lo be a disposal of the appeal ; and the disposal of an appeal only on this ground of withdrawal of the appeal by the appellant. it• is made clear in. the Explanation, will not create-any bar to the rnaintainabil)ly of the appli~~tion under Order 9, rule i 3 of the Code of Civil Procedure. On a proper interpreta tion of the Explanatk1n we are of the opinion that where there has been an appeal against an ex· parte decree and the appeal has not been withdrawn by the appellant and has been disposed of on any ground, the application under Order 9, ~ule 13 of the Code of Civil Procedure wi:J not lie and cannot be entertained,

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RANI CHOUDHURY v. SURAJ JIT SINGH (Pathak, J.)

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·In the insiant case, an appeal had admittedly been filed against the ex-parte decree. The appeal was beyond time. The appellant had not withdrawn the appeal. The appellant had filed an appli the appeal. The cation for condonation of delay in preferring application for condo nation of delay had been rejected by the Court and the appeal had been dismissed on tl)e ground of limitation. The dismissal of the appeal on the ground of limitation .resulted in. disposal of the appeal though not on merits. The appeal filed against the ex parte decree was, therefore, disposed ofon grounds . othe~than the ground that the appellant had withdrawn the appeal. The application under Order 9, rule 13 after the disposal of the appeal, therefore; became incompetent in view 'of the provisions contained in the Explanation and could not therefore be entertained by the Court. The view expressed by the High Court must, there- fore; be held to be erroneous.

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In. support of the view taken by the High Court, the High Court referred to and relied on the decision of the Privy Council in the case of Chandri·Abdul M_ajid (supra). The decision of the Privy Council, in our opinio'n, has no material ·bearing on the question involved ·in the present appeal. In the case before the Privy Council, the Judicial Committee was concerned with the question as to the commencement of· the period of limitation in respect of a decree . pas~d by the Trial Court,· affirmed by the High Court on appeal and a further appeal therefrom to the Privy Council was dismissed by 'the Privy Council for non-prosecution of the appeal. The appellant before the Privy Council wa~ fo the position. of a mor1gagor and the Respondents of mortgagees under. a mortgage dated 3rd· September, In 1889 a .suit was commenced before the Subordinate 1868. . Judge of Allahabad to enforce that mortgage and on the· 12th May, J 890, a decree was passed .by him for the sale of the property unless payment was made on or before the 12th August, 1890. An appeal was brought ·from to the High Court and on the 8th April; _1893 that appeal was dismissed and the decree ·of the Subordinate Judge was confirmed. The mortgagor obtained leave to appeal to the Judicial Committee but did not prosecute his appeal; and on the 13th May, 1901, the appeal was dismissed for want of prosecution .. · The Mortgagor decr.ee-holder made· an application to the Subordinate Judge on the I Ith June, 1909 for an order ~bsolute to sell. the mo_rtgaged properties ; it appears that an

that decree

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order had, been made on the said application t'Or execution in favour of the decree-holder and ultimately the validity of the execu tion proceedings went to the Privy Council for consideration.. The main argument before the Privy Council was that the decree which was sought to be enforced had been 1:onstructi vely tnrned into a . decree of the Privy Council by virtue of the dismissal of the appeal by the Privy Council on 13.5.1901 for non.prosecution of the appeal and the period of limitation, therefore, was 12 years from 13.5.1901. The Judicial Committee rejected this contention holding that the order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision .appealed from. The Judical Committee held that as there was no decree by the Judicial Committee adopting or confirming the decision appealed from, and as there was never any stay of the decree passed by the·' High Court affirming the decree of the Subordinate-Judge, the period of limitation will run from the date of the passing of the decree by the High C6urt and the period will be three years from the date of the decree passed by the High Court. The Privy Council allowed I.be appeal holding th.at the application dated 11.6.1909 for sale of the mortgaged properties was barred by limitation. While considering the question whether the period of limitation should be effective from the date of the dismissal of the appeal by the Judicial Committee for non prosecution thereof, the Judicial Committee had made the following observations :

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"The order dismissing the appeal for want of ptosecu tion did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or It merely recognis confirming the decision appealed from. ed authoritatively that the appeliant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had

• not appealed at all."

This position wa~ made abundantly clear by the Judicial Committee by the observations immediately following :

"To put it shortly, the only decree for sale that exists is the decree, dated 8th April, 1893, and that is a decree of the High Court of Allahabad."

RANI CHOUDHURY v. SURAJ Jlf SINCIH (Path.1k, ]_)

387

In the case of Kalimuddin Aharped v. Essbokuddin and' Ors

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material facts were :

A partition suit was instituteJ !on 20.12.1918 against several· defendants, among whom the appellant before the High Court was · No. 4. Two of the defendants contested the suit and on 22.9.1919 a preliminary decree for partition was made on contest against two of the defendants and ex parte against. the others. The appellant did not appear at all in the first Court and he was . one of the defen dants against whom the decree was made ex parte. On 17.12.1919 the first defendant alone preferred an appeal against the decree to the High Court and on 20.12.1919 the appellant presented an appli cation to the Trial Court under Order, 9, rule 13 of the Code of ·Civil Procedure. This application was kept pending until after the disposal of the appeal preferred by the first defendant. One of the respondents in the appeal filed by the first defendant died and as the appellant did nor take proper steps. to bring· the .heir; on the record, the 'appeal was dismissed as against them a nd then against ·the others it was held that in the absence or' the heirs of the deceased respondent the appeal could not proceed and the ap~~al. was acc~rdingly dismissed on 5th January 1922. Thereafter the appli cation of the appellant under 9, rule 13 of Code of Civi\ Procedure came up for bearing and on 8th April 1922 a petition of compro mise between the plaintiff and the. appellant was presented and in accordance therewith the Court ordered that the suit should be restored 'to its original number as against the applicant who was defendant No. 4 in the ·suit in regard to three only of the plots mentjoned in the plaint. In making this order, the Court proceeded the causes oil the compromise. alone without any enquiry as to In July, 1922, a different .Judge was presiding over the Court and on 5th July, 1922, be expressed doubt as to the legality of the order 'passed by his predecessor on 8th April, 1922 and after hearing the arguments he delivered bis judgment on 7th July, 1922 holding that the order passed by his predecessor on 8th April, 1922 was made without jurisdiction because, there was no longer any ex parte decree over which the Court had control and the said order was a nullity and utterly void so that no proceeding to set it 'aside were necessary and the'fact of the order being made on consent as aga!nst the plaintiff could not convert it into a valid order. Against 'this judge ment, an appeal was filed in the Higl\ <;::ourt, A division Bench o(

. which prevented defendant No. 4 from appearing at the trial.

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the Calcutta High· Court treated, the appeal as a revision petition under S. 115 and set aside the order, holding that when an ex parte . decree was appealed against and also an application to set aside was . made but the appeal was dismissed· for not bringing the representa tives of the deceased respondent on record, the ex parte decree did not merge in the appellate decree and an order passed on consent on th.e application to set aside the dicree was not without jurisdic'. tion. The decision of the Judicial Committee in Abdul Majid' s case was also considered in this case. Walmsley, J. held at p.1832 as ' follows :

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"The order of this Court may be a decree, without being such a decree as to supersede the decree of the lower Court. All that this Court decided was that having regard to the nature of the appeal, a certain defendani was a necess·ary party, and that in. the absence of that defendant, or on her death her representatives, the appeal could not proceed. On the merits of the appeal in other respects there was no adjudication, but on the contrary an express refusal to adjudicate. Consequently it is of no importance whether the order did or did not amount to a decree. What is of importance is that it was not a decree in which that of the lower Court w11s merged."

Mukherjee, J., the other learned Judge on the Bench observed at p. 834:

"Now the consideration of the question as to whether the.learned Subordinate Judge had .jurisdiction to pass the order of the 8th April, 1922 involves a consideration of the ·following questions (a) whether the order of this Court passed on the 5th January 1922, amounted to a decree or not, (b) if it was a decree, whether. the ex parte decree can be held to have merged into it, (c) whether the I.earned Subordinate Judge had jurisdiction. to set aside the ex parte · decree and restore the suit, and ( d) whether his successor could declare .or was right in declaring the aforesaid order a nullity., .

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As to (a) : · The definition of the word 'decree' in the

~ode of Civil Pro9ed1ue, iq so f11r as it purports to be a .

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definition at all, lays down the following essential and dis· ti11gulshing elements viz., that the decision must have been expressed in a suit, that the decision must have , been passed on the rights of the parties ·with , regard to all or that th'e any of the matters in controversy in the sui,t, decision must be one which conclusively determines those rights. Then certain <!rders which may or may not satisfy the above requirements are either expressly included in or excluded from the definition. The whole object of defining• a 'decree' in the said Code appears to be to classify orders in,order to determine whether an appeal or in certain cases t,herefrom. Apart from that object_ a second appeal lies this definition is of no value. I am not prepared to accept _the contention of the respondent that because an order rejecting a plaint is a decree, an order, dismissed an appeal , is by' on the ground that mere analogy to be:treated , as a decree" I am unable to reconcile either in principle or in the,ory why an order rejecting a plaint should st and on a dilferept f9oting from orders of dismissal for.default, and yet one is a decree and the other is not. It is true that an order of rejection of a plaint ha~ been expr7ssly included in the definition of a 'decree' but the legislature has included it and no analogy can be' drawn · therefrom. · The question whether· an adjudication is an order or decree i,s to , be tested not by general principles, btit by the expressions of the Code, and plain and obvio~s those words are to be construed in their sense."

it was improperly constituted

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The learned 1udge further held at p. 835 ;-

"Here the position \Vas that ,the , plaintiff bad got a respect of a certain decree as against the defendants in ·share;' one of the defendants viz., the defendant No. l, had preferre'd the appeal; excepting the question as to whether the appeal was maintainable' in the absence of the minors, the heirs of the defendants No, 6, no other question was gone into, and in fact none could be litigated, and what is more important h wh\lt th.~ rights 'or the defendant

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No. 4 were as against the plaintiff or whether the ex parte decree passed against him was a good or valid one, or whether it should stand at all, could scarcely be determined in that appeal.

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There. is no authority for the proposition that under circumstances such as these, the ex-parte decree can possibly to hav;i merged in the decree by passed the be said appellate Court"

It may be noticed that in neither of these two decisions there was or could be. any occasion for interpreting the Explanation which ~ .. came to be incorporated yea.rs later aad..these two decisions have 1 mainly proceeded on the basis of merger of the decree passed by the Trial Court with the decree of the Appellate Court.

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The words used in Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to .mean or imply disposal on .merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of. the appeal. The Explanaiion speaks of "the appeal has been disposed of. on any ground other then the ground that the appellant has withdrawn the'appeal" and these words make it abundantly clear that disposal of the appeat may be. on any ground and the withdrawal of on appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal; and, ·the disposal of the appeal from the ex-parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation. !f the intention was that the Explanation would not./J. be attracted and there would be no disposal of an appeal within· the' · meaning of the Explanation unless the appeal was. disposed of on merits resulting in the merger of the decree of the Trial Court with the decree of the Appellate Court, it would not have been neces sary to provide specifically that the disposal of an appeal on the ground of withdrawal would be exempt; because the disposal of an appeal o.n the groµnd of withdrawal ~ould ·not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal . of an appeal there is no decisio.n on merits and there is no merger• of the decree with any decree of the Appellate Court. The legisla-

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RA'.Nl CHO\)DllURY v. SUMJ ilT SINGH (Pathak, J.)

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ture could also have simply provided in the Exr.lanation for the disposal of an appeal on merits and it would not have been neces' .,,sary to use the other weirds, "on the disposal of an appeal on any ground ·other than the ground that the appellant has withdrawn the appeal. The words used, "disposal of the appeal on any ·ground other than the ground that the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposal of an appeal on the ground of the same_ being dismissed for non-prosecution, though in the case of.such disposal of the appeal there will be no effective adjudication of the appeal ori merits and the disposal of ~the appeal may not have the effect of the decree of the Trial Court appealed against being merged with ·any decree of the Appellate

-,_-court on the disposal of the appeal.

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The disposal of an appeal on the ground. of limitation may or } may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of ~he case and may or may not result in the merger of the decree of the Trial Court with the decree, if any, of the appellate Court; but there cannot be any manner- of doubt that when an appeal from the ex-parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that .the appellant has with drawn the appeal. As the dismissal of the ·appeal on the ground \.of limitation results in the disposal of the appeal on any ground · othec than the ground of the withdrawal of the appeal by the appellant, the Explanation is attracted, and the application for setting aside the ex-parte· decree becomes in-competent after the disposal of the appeal and cannot be eniertained.

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. ferring the application within the time prescribed.

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The appeal, therefore, succeeds. The judgment and order pas.sed by the High Court are set aside and the ex-parte decree

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passed in favour of the appellant on 6.12.1979 is restored. In the facts and circumstances of this case, we do not propose to make any order for costs.

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Appeal allowed.

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