SHYAM SUNDAR SARMA versus PANNALAL JAISWAL AND ORS.

SHYAM SUNDAR SARMA versus PANNALAL JAISWAL AND ORS.

Dismissal of appeal for default or on the ground of limitation cannot be equated with withdrawal; thus, explanation to Order IX Rule 13 CPC bars entertaining a petition under that rule for setting aside ex parte decree if appeal has been filed and dismissed, regardless of the grounds of dismissal.

Parties
Appellant: Shyam Sundar Sarma; Respondent No. 1: Pannalal Jaiswal; Respondents: Other respondents
Jurisdiction
India
Judgment Date
04 November 2004
Procedural Posture
Civil Appeal / Supreme Court Final Decision
Outcome
Appeal dismissed
Legal Topics
Condonation of Delay, Ex Parte Decree, Appeal Dismissal, Order IX Rule 13 CPC, Limitation Act Section 5
Civil Procedure Condonation of Delay Ex Parte Decree Appeal Dismissal Order IX Rule 13 CPC Limitation Act Section 5

Case Brief

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Parties

Shyam Sundar Sarma

Appellant

Pannalal Jaiswal

Respondent No. 1

Other respondents

Respondents

Procedural Posture

Civil Appeal / Supreme Court Final Decision

Legal Issues

  1. 1 Whether dismissal of an appeal for default or being time-barred is equivalent to withdrawal under explanation to Order IX Rule 13 CPC
  2. 2 Whether a petition under Order IX Rule 13 CPC can be entertained after appeal against ex parte decree has been dismissed for default or limitation

Ratio Decidendi

Dismissal of appeal for default or on the ground of limitation cannot be equated with withdrawal; thus, explanation to Order IX Rule 13 CPC bars entertaining a petition under that rule for setting aside ex parte decree if appeal has been filed and dismissed, regardless of the grounds of dismissal.

Court Disposition

Appeal dismissed

Orders

  • No order as to costs