LILLY Vs. RAGESH

JUDGEMENT

(1.) Petitioner is the defendant in the suit O. S. No. 147/98 which was decreed ex parte. She filed an application for setting aside the ex parte decree along with an application to condone the delay in filing the same. Both these applications were dismissed by the Court below. C. R. P. No. 1221/2004 is filed challenging the order refusing to condone the delay and C. R. P. No. 1219/2004 is filed challenging the order refusing to set aside the ex parte decree. The order passed in the application to set aside the ex parte decree under O.9 R.13 of the CPC. is an appealable order under O.43 R.1 of the CPC.

(2.) As per S.115 of the CPC., the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court, in which no appeal lies thereto and if such subordinate Court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. There is a proviso added with effect from 1.7.2002 by amending Act 1999 which provides that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. As per Sub-s.2 of S.115, the High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. Sub-s.2 was inserted by the Code of Civil Procedure (amendment) Act, 1976 with effect from 1.2.1977.

(3.) From a reading of the above provision it can be seen that as per sub-s.2 of S.115 of the CPC. this Court cannot vary or reverse any decree or order, if an appeal lies either to the High Court or to any Court subordinate thereto. The order refusing to set aside an ex parte order passed under O.9, R.13 is an appealable order as per O.43 R.1(d) of the CPC.