KULWANT KOUR Vs. RADHEY SHYAM

JUDGEMENT

(1.) THIS appeal is directed against the order dated 29.12.2001 passed by the learned Additional District Judge (Matrimonial Cases), Jammu, whereby the trial Court has declined the restoration of the application for setting aside the ex -parte decree preferred by the present appellant and earlier consigned to record for non -prosecution.

(2.) THE present appeal has been preferred under Order -XLIII, Rule -1 (c) of the CPC. Mr. L.K. Sharma, learned Advocate appearing for respondent raised preliminary objection regarding the maintainability of the appeal. With a view to canvas his submission, he has relied upon AIR 1963 Jammu and Kashmir 12, Kaviraj Mohan Singh versus Shiv Ji Bhagati, wherein the Honble Division Bench of this Court has held: -

(3.) A careful analysis of this provision clearly indicates that an appeal would lie only against an order under Order 9 Rule 9 C.P.C. rejecting an application for an order to set aside the dismissal of a suit. Clause (c) therefore, clearly postulates that there must be an order dismissing a suit for default and application to set aside that order. In the instant case, the matter does not seem to be covered by Order 43 Rule 1 (c) C.P.C. in terms. Even if the application is restored the suit stands dismissed because then the other application which was dismissed for default has to be considered.