2004 (11) TMI 523 - SC - Customs

Whether an appeal accompanied by an application for condoning the delay in filing the appeal is an appeal in the eye of law, when the application for condoning the delay in filing the appeal is dismissed and consequently the appeal is dismissed as being time barred by limitation, in view of Section 3 of the Limitation Act? Held that - An appeal which is dismissed for default or as barred by limitation because of the dismissal of the application for condoning the delay in filing the same, should be treated on a par with the non-filing of an appeal or the withdrawal of an appeal, cannot be accepted. The argument that since there is no merger of the decree of the Trial Court in that of the appellate Court in a case of this nature and consequently the explanation should not be applied, cannot also be accepted in the context of what this Court has earlier stated and what we have noticed above. Thus, in the case on hand we find that the Trial Court, the appellate Court and the High Court have rightly held that the petition under Order IX Rule 13 of the Code would not lie in view of the filing of an appeal against the decree by the appellant and the dismissal of the appeal though for default, since a dismissal for default or on the ground of it being barred by limitation cannot be equated with a withdrawal of the appeal. Consequently, the decision of the High Court is affirmed and this appeal is dismissed.

Issues Involved:
1. Whether an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, for setting aside an ex parte decree can be entertained after an appeal against the same decree has been dismissed for default or as time-barred.
2. The impact of the explanation to Order IX Rule 13 of the Code on the maintainability of such an application.
3. The legal interpretation of an appeal accompanied by an application for condoning the delay in filing the appeal.

Detailed Analysis:

1. Maintainability of Application under Order IX Rule 13:
The primary issue revolves around whether an application under Order IX Rule 13 of the Code can be entertained after an appeal against the ex parte decree has been dismissed for default or as time-barred. The appellant filed a petition for setting aside the ex parte decree under Order IX Rule 13, accompanied by an application for condoning the delay. Subsequently, an appeal was filed against the ex parte decree, also accompanied by an application for condoning the delay. Both the delay condonation application and the appeal were dismissed for default. The Trial Court dismissed the Order IX Rule 13 application, holding that it could not be entertained due to the explanation to Order IX Rule 13, which precludes such applications if an appeal against the decree has been disposed of on any ground other than withdrawal.

2. Explanation to Order IX Rule 13:
The explanation to Order IX Rule 13 of the Code, introduced by the Code of Civil Procedure (Amendment) Act, 1976, states: "Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree." The appellant argued that since the appeal was dismissed for default and not on merits, the explanation should not apply. However, the court held that the explanation applies regardless of whether the appeal was dismissed on merits or for default, as long as it was not withdrawn.

3. Legal Interpretation of an Appeal Accompanied by Delay Condonation Application:
The court examined whether an appeal accompanied by an application for condoning the delay in filing the appeal constitutes an appeal in the eye of law. Referring to precedents, including the Privy Council's decision in Nagendra Nath Dey v. Suresh Chandra Dey and the Supreme Court's decisions in Messrs Mela Ram and Sons v. The Commissioner of Income Tax and Sheodan Singh v. Daryao Kunwar, it was held that an appeal presented out of time is still an appeal, and an order dismissing it as time-barred is one passed in an appeal. The court confirmed that the dismissal of the appeal for default or as time-barred amounts to a disposal of the appeal, thus attracting the explanation to Order IX Rule 13.

Conclusion:
The court concluded that the petition under Order IX Rule 13 could not be entertained due to the dismissal of the appeal against the ex parte decree, even though it was dismissed for default. The explanation to Order IX Rule 13 precludes the maintainability of such an application if the appeal has been disposed of on any ground other than withdrawal. The legal interpretation of an appeal accompanied by a delay condonation application was affirmed, holding that such an appeal, even if dismissed for default, constitutes a disposal of the appeal. Consequently, the decision of the High Court was affirmed, and the appeal was dismissed.

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