KIRAN Vs. VEENA KUMARI

JUDGEMENT

(1.) This appeal has impugned the judgment and decree dated 23.5.2007. Vide the afore stated judgment the order of the Civil Judge dated 7.4.2004 had been confirmed. On 07.4.2004, the Civil Judge had in a suit for mandatory injunction as also for possession and permanent injunction decreed the suit of the Plaintiff exparte. Thereafter on an application under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as "the Code") filed by the Defendant, which application was dismissed on 28.3.2005. This order was impugned before the Additional District Judge. The order dated 28.3.2005 was confirmed; suit of the Plaintiff stood decreed in terms of the judgment and decree dated 07.4.2004.

(2.) Record shows that the appeal had been admitted and the substantial questions of law were formulated on 10.7.2009; they inter alia read as follows:

(3.) Learned Counsel for the Respondent has drawn the attention of this Court to the provisions of Order 43(1)(d). It is pointed out that under this statutory provision an appeal lies against an order under the provisions of Section 104 of the Code against an order passed under Order 9 Rule 13 of the Code. It is pointed out that in view thereof only an appeal under Order 43 of the Code could have been filed against the order of the dismissal of the application under Order 9 Rule 13 Code of Code of Civil Procedure which was dismissed on 28.3.2005.