AYYUB KHAN Vs. DINESH KUMAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner.

(2.) Suit filed by the plaintiff-respondent was decreed ex-parte. Subsequently, the defendant-petitioner moved an application under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (for short the 'Code') to recall the same along with an application under Sec. 5 of the Limitation Act seeking condonation of delay. Trial Court vide order dated 21.9.2007 condoned the delay and proceeded to consider the recall application on merits and finding that reasons given were sufficient set aside the ex-parte decree. The plaintiff-respondent went up in appeal. The appellate court finding that the trial court while allowing the application under Order 9, Rule 13 of the Code had failed to record any reasons and has allowed the application merely saying that reasons mentioned by the defendant-petitioner in the application are sufficient set aside the order and remanded the matter back to the trial court to decide the application afresh on merits.

(3.) It has been urged by the learned counsel for the petitioner that the order passed by the appellate court is without jurisdiction in as much as under the provisions of Order 43, Rule 1 of the Code, no appeal is provided against the order allowing application under Order 9, Rule 13 and appeal can only be filed in case the application is rejected.