CHERIYATHODA CHERIYAKOYA Vs. CHERIYATHODA KUNNI KUNNI

JUDGEMENT

(1.) The question came up for consideration is whether an appeal would lie against an order allowing restoration of suit, which was dismissed for non-prosecution or setting aside an ex parte decree. It is against Ext.P4 allowing restoration of the suit, which was dismissed for nonprosecution, the petitioner came up under Article 227 of the Constitution. It is submitted that there is no provision anywhere under Order XLIII C.P.C. enabling an appeal against an order allowing restoration of suit under Rule 9 or setting aside ex parte decree under Rule 13 of Order IX C.P.C. and as such, an appeal will not lie against Ext.P4 order. But, Ext.P4 is a conditional order, by which the trial court imposed a penalty/cost of Rs.10,000.00 as a condition precedent to allow the application.

(2.) The provision for appeal from an order under Rule 9 or Rule 13 of Order IX C.P.C. is confined only to orders rejecting an application under the abovesaid Rules by virtue of Clause (c) and (d) of Order XLIII C.P.C., which are extracted below for reference:

(3.) When there is a conditional order allowing an application either under Rule 9 or Rule 13 of Order IX C.P.C. with a default clause of rejection of application, it would squarely come under either of the abovesaid clauses (c) or (d), hence the order is appealable. The reason behind it is that on account of non-compliance of condition, it will have the effect of rejecting the application under the abovesaid provision. Necessarily, it is an appealable order under Order XLIII C.P.C..