SHYAM SUNDAR SARMA versus PANNALAL JAISWAL AND ORS.

Citation: [2004] SUPP. 5 S.C.R. 931 · Decided: 04-11-2004 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Dismissed

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Judgment (excerpt)

SHY AM SUNDAR SARMA 
v. 
PANNALAL JAISWAL AND ORS. 
NOVEMBER 4, 2004 
[R.C. LAHOTI, CJ., G.P. MATHUR AND 
P.K. BALASUBRAMANYAN, JJ.] 
Code of Civil Procedure, 1908; Order IX Rule 13 and Explanation 
thereunder/Limitation Act; Section 5: 
A 
B 
c 
Title Suit-Decreed ex-parte by trial Court-Filing of appeal and also 
petition for setting aside ex-parte decree along with applications for 
condonation of delay-Appellate C9urt dismissed the application for 
condonation of delay and the appeal for default-Petition dismissed by the 
Trial Court as appeal was not withdrawn-Affirmed by High Court-On appeal, D 
Held: Decision of the Appellate Court in dismissing the application for 
condonation of delay and consequently dismissing the appeal for default 
amounts to a decision on the appeal-Dismissal of the appeal could not be 
treated on par with withdrawal of an appeal-Explanation appended to Order 
IX Rule 13 CPC attracted-Hence, High Court rightly held that the petition 
for setting aside ex-parte decree would not lie in terms of the explanation E 
because of filing of appeal against the same Order. 
Respondent No.I filed a title suit for declaration of his title as a Thika 
tenant in respect of the scheduled property and for other consequential 
reliefs. The suit was decreed ex-parte by the Trial Court. Aggrieved, F 
appellant filed a petition under Order IX Rule 13 CPC for setting aside 
ex parte decree along with an application for condonation of delay under 
Section 5 of the Limitation Act. Later, he also filed an appeal against the 
order of the Trial Court along with an application for condonation of 
delay. Appellate Court dismissed the application as well as the appeal for 
default and Trial Court dismissed the petition as appeal filed against the G 
order of the Trial Court was not withdrawn. Challenging the decision of 
the trial Court, appellant filed a petition under Article 227 of the 
Constitution of India which was dismissed by High Court. Hence the 
present appeal. 
931 
H 
932 
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R. 
A 
Appellant contended that on the day of trial, the appeal against the 
B 
ex-parte order was not in existence as it was dismissed for default earlier; 
and that the dismissal of appeal for non-prosecution amounts to 
withdrawal of the appeal, thus Order IX Rule 13 CPC was not attracted. 
Dismissing the appeal, the Court 
HELD: 1.1. An appeal field along with an application for condoning 
the delay in filing that appeal when dismissed on the refusal to condone 
the delay is nevertheless a decision in the appeal. 1936-FJ 
C 
Nagendra Nath Dey v. Suresh Chandra Dey, (59 Indian Appeals 283); 
Raja Kulkarni and Ors. v. The State of Bombay, 11954) SCR 384; Messrs Mela 
Ram and Sons v. The Commissioner of Income Tax, Punjab, 11956) SCR 166; 
Sheodan Singh v. Daryao Kunwar, AIR (1966) SC 1332 and Board of 
Revenue v. Mis. Raj Brothers Agencies etc., 119731 3 SCR 492, relied on. 
D 
K.K. Porbunderwalla v. Commissioner of Income Tax, (1952) 21 ITR 
63 and Thambi v. Mathew, (1987) 2 KLT 848, referred to. 
1.2. On the day, the Trial Court was called upon to consider and 
dispose of the petition under Order IX Rule 13 of the Code, an appeal, 
E though belated, had been filed against the decree by the appellant and the 
same had been dismissed as barred by limitation and had not been 
withdrawn. It is not possible to accept the argument that the application 
of the explanation should be confined to cases where an appeal had already 
been filed against the ex-parte decree and it should be held not to apply to 
cases where an appeal is subsequently filed. The acceptance of such an 
F argument would tend to defeat the legislative scheme as noticed in the case 
of Rani Choudhury. In the light of the object sought to be achieved by the 
introduction of the explan~tion to Order IX Rule 13 CPC, such an 
argument cannot be accepted. (941-C-E] 
Rani Choudhury v. Lt,-Col. Suraj Jit Choudhury, [1982] 2 SCC 596 and 
G P. Kiran Kumar v. A.S. Khadar and Ors., [~002] 5 SCC 161, relied on. 
Ratanslngh v. Vijaysingh and Ors., 12001 I 1 SCC 469, distinguished. 
2. The Trial Court, the appellate Court and the High Court have 
H rightly held that the petition under Order IX Rule 13 CPC would not lie 
,-
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SHY AM SUNDAR SARMA v. PANNALAL JAISWAL [BALASUBRAMANYAN, J.] 933 
in view of the filing of an appeal against the decree by the appella'1t and A 
the dismissal of the appeal though for default, since a dismissal for de

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