MAMTAZ & ORS. versus GULSUMA ALIAS KULUSUMA

Citation: [2022] 1 S.C.R. 984 · Decided: 18-01-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 1 S.C.R.
[2022] 1 S.C.R. 984
984
MAMTAZ & ORS.
v.
GULSUMA ALIAS KULUSUMA
(Civil Appeal No. 315 of 2022)
JANUARY 18, 2022
[M. R. SHAH AND SANJIV KHANNA, JJ.]
Civil Procedure Code, 1908 – Or.9 r 13 – sec. 96 – Ex-Parte
Decree – Setting aside – Power of Appellate Court – Condonation
of Delay – In Absence of Application – The appellants filed a suit
for declaration and possession – Ex-parte decree was passed by
the trial Court against the respondents – Appeal was preferred by
the respondents before the First Appellate Court after delay of
2 years and 7 months – Respondent filed application for
condonation of delay, however he withdrew the same later on –
First Appellate Court dismissed the appeal on the ground of
limitation in absence of any application to condone the delay –
Respondents filed second appeal before the High Court – The High
Court allowed the second appeal and also set aside the ex-parte
judgment and decree passed by the Trial Court – High Court
remanded the matter to the Trial Court for fresh decision of the suit
in accordance with law – On appeal, held: What was challenged
before the High Court was the judgment and order passed by the
First Appellate Court dismissing the first appeal u/s. 96 of the CPC
as not maintainable in absence of any delay condoned application
– It appears that the High Court proceeded further with the hearing
of the appeal as if the High Court was considering the appeal against
the order passed on an application under Order IX Rule 13 CPC –
Whereas the appeal was against the order and decree passed by
the trial Court, which was affirmed by the First Appellate Court as
barred by limitation – The procedure adopted by the High Court is
unknown to the procedure known to law under the provisions of
the CPC – Therefore, the impugned judgment and order passed by
the High Court is unsustainable.
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Allowing the appeal, the Court
HELD: 1. It is required to be noted that what was challenged
before the High Court was the order/judgment and order passed
by the First Appellate Court dismissing the first appeal under
Section 96 of the CPC as not maintainable in absence of any delay
condoned application. There was no decision by the First
Appellate Court on merits. If the High Court was of the opinion
that the First Appellate Court erred in not condoning the delay
in appeal and dismissing the appeal on the ground of limitation,
in that case the High Court could have set aside the order passed
by the First Appellate Court dismissing the appeal on the ground
of limitation and thereafter remand the matter to the First
Appellate Court to decide the appeal on merits. From the
impugned judgment and order passed by the High Court, it
appears that the High Court proceeded further with the hearing
of the appeal as if the High Court was considering the appeal
against the order passed on an application under Order IX Rule
13 CPC, whereas the appeal was against the order and decree
passed by the Trial Court, which was affirmed by the First
Appellate Court as barred by limitation. Therefore, the procedure
adopted by the High Court is unknown to the procedure known
to law under the provisions of the CPC. Therefore, the impugned
judgment and order passed by the High Court is unsustainable.
[Paras 5 & 6][987-G-H; 988-A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 315 of
2022.
From the Judgment and Order dated 21.04.2021 of the High Court
of Karnataka Kalaburagi Bench in R.S.A. No.200073 of 2021.
Sharanagouda Patil, Ms. Supreeta Sharanagouda, Advs. for the
Appellants.
S. N. Bhat, Sr. Adv., Ms. Parvati Bhat, Tarun Kumar Thakur, D.
P. Chaturvedi, Shahnawaz Mamadapur, Ms. Anuradha Mutatkar, Advs.
for the Respondent.
MAMTAZ & ORS. v.  GULSUMA ALIAS KULUSUMA
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SUPREME COURT REPORTS
[2022] 1 S.C.R.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 21.04.2021 passed by the High Court of Karnataka,
Kalaburagi Bench in R.S.A. No.200073 of 2021 by which the High Court
has allowed the said appeal preferred by the respondent herein and has
quashed and set aside the order passed by the First Appellate Court in
R.A. No. 22 of 2020 and has also quashed and set aside the judgment
and decree passed by the Trial Court and remanded the matter to the
Trial Court for fresh disposal in accordance with law, the original plaintiffs
have preferred the present ap

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