LT COL SURJEET CHOUDHARY Vs. RANI CHOUDHARY

JUDGEMENT

(1.) That the disposal of an appeal against the ex-parte decree means disposal on merits for debaring the defendant/applicant from filing or continuing an application for setting aside the ex-parte decree under Order 9 Rule 13 of the Civil Procedure Code . If an application for condonation of delay in filing appeal has not been accepted it means no appeal was preferred in law and dismissal of appeal as barred by time would not be disposal of appeal as contemplated under explanation to Order 9 Rule 13 of the Civil Procedure Code . In thi view of the matter it was held that the application filed by the appellant under Order IX Rule 13 is maintainable.

(2.) Held further that the appellant is not to explain deligence during the whole period of limitation prescribed for appeal. The appellant is to explain his deligence from the last date of limitation till the date of filing the application /appeal. (1962 S.C. 361).

(3.) Dealing with the question whether there was sufficient cause for condonation of delay in filing the application under Order 9 Rule 13 of the C.PC. and for setting aside the ex-parte decree, the learned Judge after considering the material on record held that on account of exigencies of service the appellant was prevented from filing the application and accordingly the appellant was held entitled to the condonation of delay in filing the said application.