ANANDAVALLY AMMA Vs. FEDERAL BANK LTD

JUDGEMENT

(1.) This appeal filed under O.43 R.1(j) of the Code of Civil Procedure by judgment debtor No.2 challenges the dismissal by the executing Court of an application filed by him under O.21 R.90 of the Code of Civil Procedure. The dismissal was on the ground that the judgment debtor was not ready to proceed with the enquiry. The order reads:

(2.) According to us, the dismissal is one for default and the remedy of the appellant lies in moving the executing court under O.21 R.106 of the Code of Civil Procedure. No appeal lies under O.43 R.1(j) of the Code against such an order. This view was taken in Velappan v. Sahasranaman ( 1978 KLT 806 ), wherein it was held that an order dismissing an application under O.21 R.90 of the Code for default is not appealable under O.43 R.1(j) of the Code. We see no reason to differ from that statement of the law. When we pointed out this aspect to counsel, he submitted that the appeal may be returned to him so that he can file a Civil Revision Petition against the order of the executing court.

(3.) When a suit is dismissed for default, the plaintiff has to move the Court that dismissed the suit, under O.9 R.9 of the Code of Civil Procedure. The plaintiff cannot file an appeal since, a dismissal for default is not a decree, going by the definition of 'decree' contained in S.2(2) of the Code of Civil Procedure. Nor can the plaintiff file a Revision against the order dismissing the suit for default, since the plaintiff has a substantive right by way of an application under O.9 R.9 of the Code of Civil Procedure for restoration of the suit. That the right to move an application under O.9 R.9 of the Code is a substantive right is clear from State of Kerala v. Joseph, 1989 (2) KLT 561 . It has also been held that the only remedy available to the plaintiff is to apply under O.9 R.9 of the Code. (See Muhammed v. Narayani, 1991 (2) KLT 287 ).