SOHANLAL V. JAIN Vs. RBL BANK LTD.

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) Defendant Nos. 1 to 3 are in appeal before us challenging the order dtd. 21/6/2023 passed by the City Civil Court, Greater Mumbai, whereby the application moved by the defendants-appellants under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereafter referred to as "the CPC") for setting aside an ex-parte judgment dtd. 31/10/2022 in Commercial Suit No. 234 of 2022, was allowed.

(3.) Learned counsel for respondent-plaintiff has raised a preliminary objection about the maintainability of this appeal and has referred to Sec. 13 of the Commercial Courts Act, 2015 (hereafter referred to as "the said Act"), which relates to appeals from decrees and orders of Commercial Courts and Commercial Divisions. He has submitted that the proviso appended to Sec. 13(1-A) of the said Act clearly provides that an appeal shall lie only from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the CPC. It has thus been stated by learned counsel for the respondent that Order XLIII of the CPC lists the orders against which the appeal from order lies under Sec. 104 of the CPC and according to him, Order XLIII Rule 1(d) though provides for an appeal against an order passed on an application preferred under Order IX Rule 13 of the CPC, the order ought to be rejecting the application seeking restoration of a suit or any proceeding. His submission is that in the instant case, since the application for setting aside ex-parte decree has been allowed, the order does not qualify to be an order as enumerated under Order XLIII Rule 1(d).