RANI CHOUDHURY v. LT. COL. SURAJ JIT CHOUDHURY

Citation: [1983] 1 S.C.R. 372

Court: Supreme Court of India

Bench: R.S. PATHAK, AMARENDRA NATH SEN

Judgment text

RANI CHOUDHURY v. ' LT.. ,coL. SURAJ JIT CHOUDHURY 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 stction 5 of the Limitation Act has been . dismissed-Scope of. Rule 13 of 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 that the appellant has withdrawn the appeal", meaning of.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. 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 jl 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. ; 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 ni\>ri9 which decisivelr1detln~~ tJl~ trμ~ liature of a statutory provision. Its truQ 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 . -· RUie in Heydon's case, 16 English Reports 637; Swantraj & Ors.

v: State ofMaharashtra [1974],3 SCR 287, followed. 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 application for setting aside the ex~parte decree. It was where the appeal was 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 > .... its ex-parte decree. For the trial court. decree was said to have ~erged with ·~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 J3 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] - . . ( . 2:3. 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. · · 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 therefore, 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] 2:1. The words used in the Explana,tion make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to 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 Explanation 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 \. - RANI-CHOUDHURY v. sURAJ m SffGH (Pathak, J. ) .

375 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 withdrawal 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 appeal on any ground othC:r than the gr,0und that the a11pellaat has withdrawn 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 i ' ' ' · 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 the decree, 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] . l 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 ------------------ . . • A. ·_PATHAK, J. I agree that the ~ppeal must succeed. - ' \ ' -,. . 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 respondent 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-wherethe 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 respondent o_r where it is ,dismissed. as· barred by limitation. ·So th tre ·. a limited area where the trial, court decree merges in the appellate decree. and when that takes:_ place an application before the' trial . c-ourt for setting aside-the decfee loses all meaning. It was a limited I 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" F, 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 • employed, and the language construed in the context in which the • ' • \ I ' ' - /' , • • ; ) • • \ ' - ' ' (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~ Jie under this rUle for Setting ·aside th3. t ex parte ' decree. '' I . RANI CHOUDHURY . v. SURA! HT SINGH (Pathak, J,) 377 provision has been enacted. In the present case, . the· rule in- Heydon's case,(') approv~d of and applied by this Court. in Swantraj & Ors. v.

State of MaharaJhtra(') and many other 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. ' 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 simultaneous proceedings. Public time and private convenience and ) money was soilght to be saved by enacting the Explanation. The E. 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 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 R · '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 . C 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- 1 tion of the Explanation. Order 9, rule 13 of the Code of Civil Procedure reads as follows : . . ' "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: RANI CHOUDHURY v. SURA! JIT S! Nyll (Pathak, J. ) 383 ' 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 application. 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 Explanation, 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 "E 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 384 SUPREME COURT REFpRTS [1983] I s. c. R. 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 in the disposal of the appeal, though in such 'a case no merits of the appeal are adjudicated upon. The language - . used in the Explanation makes it clear that the withdrawal of an appeal is considered to be disposal of the appeal, as contemplated in the Explanation. It is significant to note that 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 parte decree, the disposal of the appeal on any ground excepting the solitary ground of disposal of the appeal by withdrawal of the same by the appellant, will create a bar to the maintainability 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 interpretation 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, I RANI CHOUDHURY v. SURAJ JIT SINGH (Pathak, J. ) 385 ·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 application for condonation of delay in preferring the appeal. The application for condonation 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, therefore; be held to be erroneous. • 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 amor1gagor and the Respondents of mortgagees under. a mortgage dated 3rd· September, 1868. In 1889 a . suit was commenced before the Subordinate . Judge of Allahabad to enforce that mortgage and on the· 12th May, J890, 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 that decree 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 ? .

J 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 • order had, been made on the said application t'Or execution in favour of the decree-holder and ultimately the validity of the execution 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 n 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 : \ "The order dismissing the appeal for want of ptosecution 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. It merely recognised 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 A.

, In the case of Kalimuddin Aharped v. Essbokuddin and' Ors the. 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 defendants 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 application 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 n· ·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 application of the appellant under 9, rule 13 of Code of Civi\ Procedure came up for bearing and on 8th April 1922 a petition of compromise 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 oil the compromise. alone without any enquiry as to the causes . which prevented defendant No.

4 from appearing at the trial. 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 G' 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 judgement, an appeal was filed in the Higl\ 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 . 0 \ those words are to be construed in their plain and obvio~s sense. " The learned 1udge further held at p. 835 ;- "Here the position \Vas that ,the ,plaintiff bad got a decree as against the defendants in respect of a certain ·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 390 SUPREME ,COURT REPORTS [1983) I S. C. R. 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. ,. There. is no authority for the proposition that under circumstances such as these, the ex-parte decree can possibly be said to hav;i merged in the decree by passed the 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 have1 mainly proceeded on the basis of merger of the decree passed by the Trial Court with the decree of the Appellate Court. D 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 E 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 F 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 G the decree of 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 o. n the groμnd of withdrawal ~ould ·not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal H . 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- RA'. Nl CHO\)DllURY v. SUMJ ilT SINGH (Pathak, J. ) ~91 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 c -,_-court on the disposal of the appeal. · '· 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 D 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 withdrawn the appeal. As the dismissal of the ·appeal on the ground \. of limitation results in the disposal of the appeal on any ground · othecthan 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. As in ou.

r view, the application for setting aside the ex-parte decree does not lie and cannot be entertained, in view· of the provisions contained in the Explanation, it does not become necessary • for us to go into the merits of the application to consider whether sufficient caus~ had been shown by the respondent for his non- G appearance at the' hearing. at the date fixed and also for not pre- . ferring the application within the time prescribed. The appeal, therefore, succeeds. The judgment and order H pas. sed by the High Court are set aside and the ex-parte decree • SUPREMB COURT kEl>OkTS (1983J J S. C. R. A 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 orderfor costs. B S. R. Appeal allowed. ·1. . . I ; '· '. .. ·• ;