Smt. Neerja vs Sushil Kumar Sharma
2023 Latest Caselaw 14412 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:100158
 
Court No. - 10
 

 
Case :- FIRST APPEAL FROM ORDER No. - 464 of 2023
 

 
Appellant :- Smt. Neerja
 
Respondent :- Sushil Kumar Sharma
 
Counsel for Appellant :- Gyanendra Kumar Singh
 

 
Hon'ble Dinesh Pathak,J.

Suit for cancellation of the registered sale deed dated 31.08.2017 and prohibitory injunction filed on behalf of the plaintiff-respondent has been decreed ex parte by judgment and decree dated 24.01.2022. Having been aggrieved, the defendant-appellant has preferred a restoration application along the a delay condonation application on 23.12.2022. The trial court, vide order impugned dated 23.01.2023 has rejected the delay condonation application (paper no. 6-c), however, no observation has been made with respect to the restoration application.

Assailing the order dated 23.01.2023, by which delay condonation application has been rejected, instant first appeal from order has been preferred on behalf of the defendant-appellant under Order XLIII Rule 1(d) of C.P.C.

Dealing with the identical matter with respect to the maintainability of the first appeal from order under Order XLIII Rule 1(d) C.P.C., the Division Bench of this Court has categorically observed that such appeal is not maintainable in the eye of law. Relevant paragraph nos. 8 and 9 of Division Bench dictum in the case of Shiv Saran Lal Gupta and Ors. vs. Usha Kiran Gupta and Ors., reported in 2008(4) AWC 4186 (DB) is being quoted herein below:-

"8. According to us, an appeal can be preferred from certain orders as per Order XLIII, Rule 1 of the C.P.C. Clause (d) under such Rule 1 is applicable herein which speaks as follows:

(d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte:

9. The bracketed portion, as aforesaid, is playing a crucial role in this regard. Rejection of an application under Order IX, Rule 13, C.P.C. in a case open to appeal means that the same will arise out of merit. If it is passed on merit, obviously the appeal will lie. But if it is not passed on merit but on limitation then it is not open to appeal. The order is under Section 5 of the Limitation Act alone. Rejection of application under Order IX, Rule 13, C.P.C. in such circumstances is an incidental order as a natural corollary but not an order on the merit to attract Order IX, Rule 13, C.P.C. Therefore, the appeal cannot be held to be maintainable from such order."

Considering the dictum of Division Bench, as mentioned above, instant first appeal from order is held to be not maintainable and instant appeal is dismissed on the ground of availability of alternative remedy with liberty the appellant to take recourse under the appropriate provisions of law, as he may be advised.

Order Date :- 8.5.2023

Pkb/