ARUN CHANDRA Vs. PATILAL ROY

JUDGEMENT

(1.) On 16-9-78 the appellant-plaintiff obtained an ex parte order under O.8 R.10 of the Civil P.C., for short "the Code" and the follow up decree was prepared on 18-9-1978. The respondents-defendants filed an application under O.9 R.13 for restoration of the suit upon setting aside the ex parte order which was dismissed on 25-9-1978. The said order is extracted below :

(2.) Mr. P. Ray, learned counsel for the appellant has made two pronged attack on the impugned order. It has been contended that the appeal was not maintainable, inasmuch as the right of appeal against an order under O.8 R.10 of the Code had been taken away by deleting R.1(b) of O.43 of "the Code" by the Civil Procedure (Amendment) Act 104 of 1976, "the Amendment Act" for short, which came into force on 1-2-1977. The appeal which was preferred before the first appellate Court was against an order under O.8 R.10 and, as such, the first appellate Court had no jurisdiction to entertain the appeal. The second contention, an alternative submission, is that the moment the application under O.9 R.13 of "the Code" projected against the order rendered under O.8 R.10 was dismissed, the first appellate Court lost jurisdiction to dispose the appeal. According to learned counsel, the Explanation added to O.9 R.13 by "the Amendment Act", prohibiting trial Courts to continue with the proceedings under O.9 R.13 on disposal of appeal against the ex parte decree, is squarely applicable in the case of appeal when an application under O.9 R.13 is dismissed. In support of his contention, learned counsel has relied on Rani Choudhury v. Surat Jit Choudhury AIR 1982 SC 1397.

(3.) At the first blush the first contention appeared to be very attractive, as in fact O.43 R.1(b) has been deleted by "the Amendment Act". O.43 R.1(b) reads as follows:-