Gauhati High Court
Golapi Rai Chaudhury @ Golapi Rai vs Prema Biswas And 2 Ors on 24 February, 2021
Page No.# 1/5
GAHC010285082019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/161/2019
GOLAPI RAI CHAUDHURY @ GOLAPI RAI
W/O SHRI JITEN CHAUDHURY, VILL. NO. 2, DUNGABORI MOUZA-GOVA,
P.O. DUNGABORI, P.S. JAGIROAD, DIST MORIGAON, PIN-782410
VERSUS
PREMA BISWAS AND 2 ORS.
S/O LT. GYAN MOHAN BISWAS, R/O VILL. NO. 2, DUNGABOR, MOUZA-
GOVA, P.O. DUNGABORI, P.S. JAGIROAD, DIST. MORIGAON, PIN-782410
2:BHIM BISWAS
S/O SHRI PREM BISWAS
R/O VILL. NO. 2
DUNGABOR
MOUZA-GOVA
P.O. DUNGABORI
P.S. JAGIROAD
DIST. MORIGAON
PIN-782410
3:DULAI BISWAS
W/O SHRI PREM BISWAS
R/O VILL. NO. 2
DUNGABOR
MOUZA-GOVA
P.O. DUNGABORI
P.S. JAGIROAD
DIST. MORIGAON
PIN-78241
Advocate for the Petitioner : MR. S CHAKRABORTY
Page No.# 2/5
Advocate for the Respondent : FOR CAVEATOR
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 24-02-2021
Heard the learned counsel Mr. S. Chakraborty appearing for the petitioner. Also heard
Mr. S. Chauhan, the learned counsel appearing for the respondents.
2. Challenge in this petition is to the Order dated 28.08.2019 passed by the learned Civil
Judge, Morigaon in Misc.(J) Case No. 43/ 2019 arising out of T.A. No. 06 of 2019 whereby the
Court below condoned the delay in filing of the aforesaid appeal against the judgment and
decree dated 16.08.2016 passed by the Munsiff No. 1, Morigaon in T.S. No. 65 of 2015.
3. The petitioner filed T.S. 65 of 2015 in the Court of the Munsiff praying for a decree of
declaration of her right, title and interest over a plot of land. Summons was issued to the
respondents. Accordingly, on 06.04.2016 the respondents entered appearance before the
Court of the Munsiff and prayed for some time to file the written statement. The Court
allowed the request of the respondents. Pursuant to the mandate of law as contained in
Order VIII Rule 1 of the Code of Civil Procedure, the Court fixed the matter on 07.04.2016 for
filing the written statement. On that day the respondents failed to appear and accordingly the
suit proceeded ex-parte. The petitioner examined three witnesses and thereafter the Court
passed a judgment on 16.08.2016. In fact the suit of the petitioner was decreed accordingly.
4. Since the respondents did not file any appeal within the stipulated period of time, the
petitioner filed an execution proceeding being T.Ex Case No. 01 of 2017 for execution of the
decree dated 16.08.2016.
5. Thereafter the respondents filed an application under Order IX Rule 13 of the Code of
Civil Procedure, 1908 for setting aside the ex-parte judgment and decree dated 16.08.2016.
Along with the aforesaid application, an application for condonation of the delay in filing of
such an application was also filed. The said application praying for condonation of delay was
Page No.# 3/5
registered as Misc.(J) Case No. 31 of 2017.
6. On 30.07.2018, the Court of the Munsiff No. 1, Morigaon dismissed the prayer for
condonation of delay.
7. Thereafter, the respondents approached this Court challenging the aforesaid order
passed in Misc.(J) Case No. 31 of 2017. The matter was registered as CRP No. 181 of 2018.
This Court, on 01.03.2019 dismissed the aforesaid revision petition, upholding the order
dated 30.07.2018 passed by the Munsiff No. 1, Morigaon. The relevant portion of the
judgment dated 01.03.2019 passed by this Court is quoted as under:
"The petitioner in the petition for condonation of delay filed before the Executing court
along with the application under Order IX Rule 13 of the CPC, in my considered opinion, failed
to substantiate any sufficient cause in remaining absent and taking steps in the suit. The
learned court below rightly dismissed the same inasmuch as the court below came to the
finding that the defendants/petitioners failed to substantiate that they had no knowledge of
the suit till 29.04.2017. Rather, it is clearly admitted by the defendants/petitioners in their
petition under Order IX Rule 13 of the CPC that they engaged counsel to take steps in the
suit who in turn took steps till the passing of the order on 06.094.2016. Accordingly, I do not
find any merit in this revision application. This revision application is accordingly dismissed."
8. After passing of the aforesaid order by this Court the respondents filed an appeal
before the Court of the Civil Judge, Morigaon challenging the aforementioned order dated
16.08.2016. Along with the aforesaid appeal memo a petition under Order 41 Rule 3A of the
Code of Civil Procedure, 1908 read with Section 5 of the Limitation Act was filed praying for
condonation of delay in filing the appeal. The delay in filing of the appeal was of 259 days.
That prayer for condonation of delay was registered as Misc(J) Case No. 43 of 2019 and the
appeal was registered as T.A. No. 06 of 2019. The present petitioner contested Misc(J) Case
No. 43 of 2019. After hearing both sides the Civil Judge, Morigaon condoned the delay with a
direction to pay a cost of Rs. 5,000/-.
9. The petitioner, being aggrieved by the aforesaid order, condoning the delay, in Misc.(J)
Case No. 43 of 2019 filed the present application.
10. I have given my anxious consideration to the submission made by the learned
Page No.# 4/5
counsels of both sides.
11. There is no doubt that the learned Munsiff No. 1, Morigaon refused to condone the
delay in filing the petition under Order IX Rule 13 of the CPC. This Court also agreed with the
view taken by the Munsiff No. 1.
12. The present revision petition has been filed against the order of the Civil Judge who
condoned the delay in filing of the appeal against the ex-parte order.
13. At this stage Section 96 of the Code of Civil Procedure may be visited. It reads as
under:
"96. Appeal from original decree.- (1) Save where otherwise expressly
provided in the body of this Code or by any other law for the time being in force, an appeal
shall lie from every decree passed by any Court exercising original jurisdiction to the Court
authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the
nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter
of the original suit does not exceed [ten thousand rupees]."
14. When an ex-parte decree is passed by a Court the defendant has two options - (a)
the first one is to file an application under Order IX Rule 13 CPC to set aside the ex-parte
decree by satisfying the court that the summons was not served or if served, the defendant
was prevented by "sufficient cause" from appearing in the court when the suit was called for
hearing; (b) the second one is to file a regular appeal from the original decree to the first
appellate court in terms of Section 96(2) CPC and challenge the ex-parte decree on merits.
15. Right to file an appeal under Section 96(2) CPC is a statutory remedy. The right to
appeal is not a mere matter of procedure; but is a substantive right. Right to appeal under
Section 96(2) CPC challenging the original decree passed ex-parte, being a statutory right,
the defendant cannot be deprived of the statutory right merely on the ground that the
application filed under Order IX Rule 13 CPC was earlier dismissed.
Page No.# 5/5
16. The ex-parte decree dated 16.08.2016 in T.S. No. 65 of 2015 was passed by the Court
exercising original jurisdiction. Therefore, the appeal lies against such a decree.
17. The Civil Judge condoned the delay in filing of the appeal and accordingly admitted
the appeal. The present petitioner is aggrieved because the Court of the Civil Judge,
Morigaon had condoned the delay in filing of the appeal. The petitioner contended that the
respondents erroneously pleaded before the Civil Judge that the delay was of 259 days,
whereas it should have been 966 days.
18. The law pertaining to condonation of delay is well settled by a catena of decisions of
the Supreme Court. Therefore, I do not want to have an elaborate discussion on this issue. I
have gone through the impugned order dated 28.08.2019 passed in Misc.(J) Case No. 43 of
2019. The order of the Civil Judge is a reasoned one and I am not inclined to interfere into
the said order.
19. Therefore, with the aforesaid premised reasons the present revision petition is found
to be devoid of merit and is accordingly dismissed.
20. The case record of Misc.(J) 43 of 2019 shall be returned.
JUDGE
Comparing Assistant
