Case Note & Summary
The dispute originated from a suit for declaration and possession filed by the appellants (original plaintiffs) against the respondent (original defendant). The Trial Court decreed the suit ex parte on 08.01.2018. The defendant had two remedies: filing an application under Order IX Rule 13 CPC to set aside the ex parte decree or preferring an appeal under Section 96 CPC. The defendant chose the latter and filed a first appeal before the First Appellate Court, but there was a delay of 2 years and 7 months. The defendant filed an application for condonation of delay (I.A. No. 1 of 2020) but later withdrew it. Consequently, the First Appellate Court dismissed the appeal as not maintainable due to the absence of a condoned delay application, without examining the merits. The defendant then filed a second appeal before the High Court. The High Court allowed the appeal, quashed the First Appellate Court's order, set aside the Trial Court's ex parte decree, and remanded the matter to the Trial Court for fresh disposal. The appellants challenged this High Court order in the Supreme Court. The core legal issues were whether the High Court's remand to the Trial Court was procedurally correct and how to address the defendant's withdrawn delay condonation application. The appellants argued that the High Court erred in quashing the Trial Court's decree and remanding to the Trial Court, as the appeal was against the First Appellate Court's order on limitation. The respondent requested permission to revive the withdrawn delay condonation application to avoid being remediless. The Supreme Court analyzed that the High Court should have remanded the matter to the First Appellate Court to decide on delay condonation and merits, as the appeal was against the First Appellate Court's order, not the Trial Court's decree. The Court held that the High Court's procedure was unknown to law under the CPC. The Supreme Court allowed the appeal, quashed the High Court's order, remanded the matter to the First Appellate Court, and permitted the defendant to revive the delay condonation application. The First Appellate Court was directed to first decide on delay condonation and, if condoned, then decide the appeal on merits.
Headnote
A) Civil Procedure - Appellate Jurisdiction - Scope of Remand - Code of Civil Procedure, 1908, Section 96 - High Court, in a second appeal against dismissal of first appeal on limitation grounds, erroneously quashed Trial Court's ex parte decree and remanded suit to Trial Court - Held that High Court should have remanded matter to First Appellate Court to decide on delay condonation and merits, as appeal was against First Appellate Court's order, not Trial Court's decree (Paras 5-6). B) Civil Procedure - Delay Condonation - Revival of Withdrawn Application - Code of Civil Procedure, 1908, Order IX Rule 13 - Defendant withdrew delay condonation application in first appeal, leading to dismissal on limitation - Supreme Court permitted defendant to revive application for condonation of delay before First Appellate Court - Held that First Appellate Court must first decide delay condonation, then proceed to merits if delay condoned, to prevent defendant being remediless (Paras 7-8).
Issue of Consideration
Whether the High Court erred in quashing the Trial Court's ex parte decree and remanding the matter to the Trial Court while hearing a second appeal against the First Appellate Court's order dismissing the first appeal as barred by limitation, and the appropriate remedy for the defendant regarding delay condonation
Final Decision
Supreme Court allowed the appeal, quashed the High Court's order dated 21.04.2021, remanded the matter to the First Appellate Court, permitted the defendant to revive I.A. No.1 of 2020 for delay condonation, and directed the First Appellate Court to first decide on delay condonation and then on merits if delay condoned, with no order as to costs
Law Points
- Appellate procedure under Section 96 of the Code of Civil Procedure
- 1908
- delay condonation in appeals
- scope of remand orders
- distinction between appeals against ex parte decrees and applications under Order IX Rule 13 CPC
