KUNHIRAMAN Vs. BOSSY

JUDGEMENT

(1.) The petitioner is the second defendant in a suit for recovery of a sum of money alleged to be due to the plaintiff under a karar. That claim was being contested by the defendant and the case came up for trial on 1-9-1972. On that day the defendant did not appear and on the same day the suit was decreed by the learned Munsiff on the merits. On 16-9-1972 the second defendant filed an application to set aside the ex parte decree alleging that he was prevented by sufficient cause from appearing on the day the case stood posted for trial. That application was dismissed on 22-1-1973 stating that the disposal of 1-9-1972 was on the merits and so an application under O.9 R.13 will not lie. The petitioner applied for a copy of that order and that was received by him on 3-9-1973. Subsequently on 24-9-1973 he filed an appeal before the lower court as A. S.194 of 1973 and along with that he also filed an application to excuse the delay in filing that appeal. The ground stated in the affidavit in support of the petition is that when he took the papers for filing a revision his advocate told him that the disposal of the case on 1-9-1972 is a disposal on the merits and therefore an appeal against the decree is the proper remedy and not an application to set aside the decree under O.9 R.13. He further stated that he was misled by the earlier legal advice obtained by him, the delay in filing the appeal is due to this and the delay for the period up to the date of the revised advice may be condoned. It is seen that against the order dismissing the application filed under O.9 R.13 the petitioner had tried a revision petition before this Court as CRP. 1457 of 1973. But this Court dismissed the revision petition in limine stating that the order attacked in revision is open to appeal and the revision is not the proper remedy. The application for excusing the delay was opposed by the plaintiff As the lower court was not satisfied that sufficient grounds have been made out to excuse the delay the petition was dismissed and the appeal was also dismissed. Against the decree dismissing the appeal S. A. 516 of 1976 has been filed and against the order dismissing the delay petition CRP. 2111 of 1976 has been filed.

(2.) According to me when the petition to excuse delay is dismissed and the appeal is dismissed on the ground that it is barred, the remedy of the person aggrieved is to file an appeal against the decree, if that is allowed by law, and take a ground in the appeal that the lower court was wrong in not excusing the delay in filing the appeal. This will be the main and the only ground in the appeal, that is the only point to be urged in the appellate court also; and if the appellate court is satisfied that the reasons given for not allowing the application to excuse delay cannot be sustained the appeal has only to be allowed and case sent back. In such a situation it is unnecessary to file a revision petition against the order refusing to excuse the delay in filing the appeal. The same is the case when an application to excuse the delay in applying for setting aside an ex parte decree is dismissed. The order dismissing the application to set aside the decree on any ground is appealable. On filing an appeal a ground can be and has to be taken that the application to excuse the delay was wrongly dismissed. If a revision is to be filed that will lie before this Court only whereas the appeal against the order on the main petition may very often be to the District Court or Sub Court. If the correctness of the order dismissing the delay petition cannot be questioned in such appeals, appeals to the lower courts become ineffective and useless. That is not the law. When a petition to excuse the delay in filing an appeal or an application to set aside the ex parte decree is dismissed and the consequent decision of the latter appeal or application is appealable the proper remedy is to appeal and take a ground regarding the incorrectness of the order on the delay petition. On facts the order can be challenged. In revision against the order dismissing the delay petition, the correctness of the order cannot be considered except on grounds provided for under S.115 CPC. which are limited. This is an added reason to hold that revision in such case is not the proper remedy.

(3.) Further it is open to doubt whether it is proper for the revisional court, in case the revision is allowed, to set aside a decree dismissing the appeal as time barred without an appeal or revision against that decree or order. When an appeal is dismissed the procedure to follow is prescribed under S.100 CPC. or Order XLIII CPC, and that cannot be circumvented by seeking recourse to the inherent power of court to pass such orders as it thinks fit on allowing the revision. Whatever may be the view that was being taken in some cases till recently it is now not open to doubt that it is not necessary to file a revision petition against the order refusing to excuse the delay. Order XLIII R.1A recently introduced by the amendment to the Civil Procedure Code is very clear on this point.