[Cites 17, Cited by 0]
Madhya Pradesh High Court
Gajendra Kumar Jain vs Kedarmal Bansal And 2 Ors. on 15 April, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
ON THE 15 th OF APRIL, 2026
FIRST APPEAL No. 975 of 2013
GAJENDRA KUMAR JAIN
Versus
KEDARMAL BANSAL AND 2 ORS. AND OTHERS
Appearance:
Shri A.S.Garg, learned Senior Advocate with Shri Jitendra Verma -
Advocate for the appellant.
Shri Nilesh Agrawal - Advocate for the respondent No. 1.
Shri Dinesh Singh Chouhan - Government Advocate for the respondent
No.3/State.
Shri Nitin Phadke - Advocate for the proposed respondent/Intervenor.
Reserved on : 30.01.2026
Pronounced on : 15.04.2026
JUDGMENT
This is an appeal by the appellant/plaintiff against the order dated
02.05.2012 passed in Civil Suit No. 50-A/2012 whereby the suit of the
appellant/plaintiff was dismissed in absence of the plaintiff and his counsel
without deciding the issues on merits however by mentioning that the same is
being dismissed in terms of Order 17 Rule 3 of the Code of Civil Procedure.
Facts of the case in brief :
2. The appellant/plaintiff filed a suit for declaration, permanent injunction
and specific performance of contract in respect of agricultural land bearing survey
Nos. 497 and 548, admeasuring 5.13 acre and 2.86 acre, respectively totaling to
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7.99 acre situated at village Palanda, Tehsil and District Ujjain.
3. The averments made in the plaint were that on 15.07.1998 an agreement
to sale was executed between the appellant/plaintiff and the
respondents/defendant with respect to aforementioned suit property of the
ownership of respondent/defendant No.1. It was further averred that pursuant to
this agreement an amount of Rs. 6,50,000/- was paid in cash and a further amount
of Rs. 1,50,000/- was deposited in the account of defendant No. 1 vide cheque
dated 30.07.1998 by the appellant/plaintiff. Even after receiving this sale
consideration, the sale deed was not executed on various grounds. However, a
supplementary agreement was executed on 10.04.2007 whereby on due
acknowledgement of earlier payments of Rs. 8,00,000/-, a further payment of Rs.
5,00,000/- was received on 10.04.2007 itself and as such, the entire sale
consideration of Rs. 13,00,000/- was received and it was agreed that the defendant
No. 1 shall execute sale deed pursuant to this agreement, when the same was not
executed, the instant suit came to be filed for specific performance of contract.
4. In the said suit, notices were issued to the defendants who filed their
written statement after which the trial Court framed issues and various dates for
recording evidence were fixed. The appellant/plaintiff submitted a list of five
witnesses. The Court granted time repeatedly however, it is only on 16.03.2010
that the affidavits of the plaintiff witnesses were filed in terms of Order 18 Rule 4
of the CPC. Accordingly, the Court fixed the date for 22.03.2010 and on the said
date, the matter was further fixed for 06.04.2010.
5. On 06.04.2010 the defendants objected against the admissibility of the
agreement to sale on the ground of insufficient stamp, on which the agreement to
sale was impounded and proper stamp duty was directed to be paid and the case
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was adjourned for 04.05.2010. The case kept on getting adjourned up to
25.06.2010 when the Court recorded a detailed ordersheet whereby on the medical
ground of the plaintiff, the case was fixed for 14.07.2010 for cross-examination of
the plaintiff witnesses. However, on 14.07.2010 again time was sought and the
case was listed for 19.04.2012. On the said date again the plaintiff prayed for
time. Thus, the case was fixed for 02.05.2012 for payment of duty and penalty on
the agreement to sale.
6. On 02.05.2012 neither the plaintiff nor his Advocate was present before
the Court. Thus, the Court passed over the case to be taken up after lunch hours.
At 4:00 pm, the case was again taken up however, neither plaintiff nor his
Advocate appeared before the Court. However, the defendants No. 1 and 2 were
represented through their counsel and defendant No. 3 was ex-parte. In such
circumstances, the trial Court after recording that even after repeated calls none
appeared for the plaintiff and his witnesses are also not present, as also the duty
penalty has not been paid in terms of order dated 06.04.2010 thus, the suit is being
dismissed. However, while dismissing the suit, reference was made to Order 17
Rule 3 of the CPC. It is this order of 02.05.2012 which has been put to challenge
by the plaintiff/appellant before this Court in the instant appeal.
Submissions of the Appellant
7. Learned Senior Counsel for the appellant/plaintiff submits that the
Court erred in not granting time to the plaintiff and dismissing the suit in the
manner as has been done by it as there is no decision at all in terms of Order 17
Rule 3. The learned Senior Counsel appearing for the appellant submits that there
was sufficient explanation with the appellant for not appearing before the Court in
as much as he got busy in a project named Sai Paradise at Thane (Mumbai),
having its office at Harvansh Building, 6th Floor, NS Road, Juhu JVPD Scheme
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Mumbai. As he was busy in the aforesaid project, he could not contact his lawyer
for day to day progress of the case. The counsel appearing for the appellant also
did not send any information, hence when the case was called, no one appeared
and that resulted in dismissal of the suit. Thereafter, the appellant/plaintiff
contacted his lawyer but was not informed about the progress of the case, so he
engaged a new counsel who went to Ujjain and enquired about the matter. Only
then the appellant/plaintiff came to know that the case has already been dismissed
on 02.05.2012. Thus, the present appeal has been filed before this Court.
8. Learned Senior Counsel thus submits that the appellant/plaintiff was
prevented by a sufficient cause for his non-appearance on 02.05.2012 as on the
said date, he was not intimated by his counsel and as such, he could not appear
before the Court when the case was called. It was further submitted that the
learned trial Court ignored the fact that if the counsel appearing for the parties
does not appear, an SPC or fresh notice ought to have been issued to the party.
Learned Senior Counsel further submits that the Court has dismissed the suit
under Order 17 Rule 3 of the CPC which is not proper in view of the fact that
the appellant/plaintiff or his counsel did not appear. Thus, the suit could not have
been decided and it should have been dismissed in terms of Order 17 Rule 2 of the
CPC, as such the impugned order is not sustainable in the eyes of law. Thus, the
appeal is liable to be allowed and the matter deserves to be remanded back to the
trial Court for decision on merits.
Submissions of the Respondent
9. Opposing the submission of the learned Senior Counsel for
the appellant/plaintiff, the learned counsel appearing for the respondent submits
that the impugned order has been passed in terms of Order 17 Rule 2 and not Rule
3 of the CPC. Mere mention of a provision would not make it an order passed
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under that provision and the manner & purport of the order has to be seen. If the
order is seen on the face of it, it would come to the fore that the Court has
dismissed the suit in default thus, the same will be covered under the provisions of
Order 17 Rule 2 of the CPC, consequently, this appeal is not maintainable.
10. He further submits that in fact at the initial stage also this objection was
raised however, learned counsel for the appellant by placing reliance on the
judgment passed in case of Shantabai Ramji Gujrati vs. Chokhelal Ishwarprasad
Agrawal reported in 1975 MPLJ 832 contended before the Court that the first
appeal is maintainable and accordingly, this Court on 17.08.2016 admitted the
appeal for final hearing. However, the judgment as relied upon by the appellant
was already overruled by the Full Bench decision in the case of Rama Rao &
Others vs. Shantibai & Others reported in 1977 MPLJ 364 , long before
17.08.2016. Thus, he submits that even the order dated 17.08.2016 passed by this
Court in the proceedings of this case would not rescue the present appeal as the
same is not maintainable.
Rejoinder by Appellant
11. Learned Senior Counsel adverting to the submissions made by the
counsel for respondent No.1 submits that in fact the Court cannot look into this
issue of maintainability in view of the fact that this Court has already held the
appeal maintainable and admitted for final hearing. This order of 17.08.2016 was
never challenged by the respondents. In support of his submissions, learned
Senior Counsel has placed reliance on the order passed by this Court in the case of
Maruti Damaji vs. Gangadhar Rao Kher reported in 1964 MPLJ 919 . He further
relied on the judgments passed in case of Harprasad vs. Maniram reported in
2016 (1) MPLJ 416; Farooq Mohammad Vs. State of M.P. reported in 2015 (4)
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MPLJ 450 and; Jabalpur Bus Operator vs. State of M.P. reported in 2003 (1)
MPLJ 513.
12. Learned counsel for the intervenor is also heard, he submits that the
intervenor is the bonafide purchaser of the suit property, as such, his interests will
be directly affected by the outcome of the present litigation thus he deserves to be
impleaded as party respondent in the present case.
Analysis and Conclusions by the Court
13. Heard learned counsel for the parties and perused the record.
Regarding Intervenor
14. Before adverting to the merits of the case, it would be profitable to first
deal with application I.A. No. 5380/2024 filed under Order 22 Rule 10 of the CPC
by the proposed intervenor namely Amaltas Hotel Pvt. Ltd. who has posed as the
subsequent purchaser of the suit property. It is submitted that being a subsequent
purchaser of the suit property, it has entered into the shoes of the respondent and
thus, it has every right to contest the case and thus the application filed under
Order 22 Rule 10 of the CPC should be allowed.
15. Learned counsel for the proposed intervenor submits that in view of
the judgment of the Hon'ble Apex Court in case of Amit Kumar Shaw and
Another vs. Farida Khatoon and Another reported in (2005) 11 SCC 403 as well
as a recent decision of the Hon'ble Apex Court in case of Yogesh Goyanka vs.
Govind and Others (C.A.No. 7305/2024), the application for intervention should
be allowed and applicant/Intervenor should be made party respondent in the
present appeal.
16. Considering the fact that the present is an appeal filed against an order
whereby the suit was dismissed in default and not on merits, this Court is not
inclined to entertain the intervention application filed by the proposed Intervenor
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for two reasons. First, if the appeal is not entertained, then the matter will get
closed without any decision on merits either way i.e. neither in favour of the
plaintiff nor in favour of the defendants and in case the appeal is entertained, then
the matter is to be remanded back to the trial Court where the applicant/Intervenor
can approach and place its case on merits for impleading as party which, in case
occasion so arises, will be adverted to on its own merits. Thus, the intervention
application (I.A.No. 5380/2024) subject to observations made hereinabove is
rejected.
Regarding Maintainability of Appeal
17. As regards the maintainability of the appeal, indeed it is correct that
on 17.08.2016, this Court held that the appeal is maintainable and admitted it for
final hearing however, this was done by placing reliance on the judgment
o f Shantabai (supra) . This judgment was overruled by the Full Bench of this
Court in the year of 1977 itself in case of Rama Rao (supra) . As such the
appellant/plaintiff, in all fairness, should have been careful in relying over a
judgment which was expressly overruled by the Full Bench of this Court. A
perusal of the judgment of the Full Bench in case of Rama Rao (supra) would
show that the Court repeatedly referred to the case of Shantabai (supra) and has
held in para 21 that the decision in case of Shantabai (supra) and other similar
cases are not correctly decided. The Full Bench then proceeded with the main
issue and held that in para 17, 19, 20 and 21 as under :
''17. We may point out that the reasons given by the Full Bench for taking the
contrary view are all met in the discussion made earlier. We have already
pointed out that the expresses inclusion of the words "the parties or any of them
fail to appear'' in Rule 2 and their deliberate omission from Rule 3 provides a
clear indicate that the Rule 2 alone applies where there is default in appearance
of all of any parties at the adjourned hearing. Nothing has been said in
Shantabai's case (supra), in this connection except to state the conclusion that
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there is no indication in the language of these two Rules. The next reason is
also not plausible. There is no question of the defaulting party depriving the
Court of its power by remaining absent and avoiding the application of Rule 3.
It is not that an order under Rule 2 is set aside automatically. The has not be
satisfied by the defaulting party that its absence was for valid reason and then
only the Court puts back the clock and not otherwise. Thus, there is no question
of defaulting party gaining any advantage by the so-called double default. The
need of providing an opportunity to the defaulting party of give an explanation
for the default is only one of the arguments in favour of the view that Rule 3
pre-supposes the presence of all the parties and that is not by itself the basis of
that view. The aspect has also been dealt with at length earlier. The wide
meaning given to the expression ''or make such other order as it things fit''
occurring in Rule 2 is, in our opinion, not called for when admittedly there is
unanimous opinion for a strict construction of Rule 3. Moreover, this reasoning
overlooks the obvious consequence that Rule 3 is there by rendered superfluous
and such a result has to be avoided unless it must necessarily follow from the
clear words of the statute. In our opinion, the reasons expressly given for
taking the opposite view do not withstand a close scrutiny and at any rate they
do not justify a departure from the settled view of this Court prevailing for such
a long time. The Full Bench in Shantabai's case (supra), does not say that the
earlier settled view of this Court is not based on a plausible construction of
Rules 2 and 3 of Order 17, Civil Procedure Code so that notwithstanding the
lond period for which it had prevailed in this Court, it must be departed from. It
is obvious that even if both views are possible, the view which was prevailing
in this Court for such a long time being one of them, it would be undesirable to
unsettle the law by departing now from that view.
'19. We shall now refer to some decisions of the other Courts. The view of the
Madras High Court expressed in Pichamma vs. Sreeramulu (ILR 41 Mad, 286),
was reiterated in Gurusanthayya v. Setra Veerayya (AIR 1952 Mad. 825) , Same
is the view expressed by a Full Bench of the Andhra Pradesh High Court in M.
Agaiah v. Mohd. Abdul Kereem (AIR 1961 AP 201) . The Orissa High Court
has also taken the same view. See Parikshit Sai v. Indra Bhoi (AIR 1967 Orissa
14) and Hindusthan Steel Ltd. v. Prakash Chand (AIR 1970 Orissa 149) . In
Basalin gappa v. Shidramappa (AIR 1943 Bom. 321 (FB), a Full Bench held
that if all evidence is led after default of appearance, the decree passed is ex
parte and such a decree fell under Order 17, Rule 2. On this point, the Bombay
decision takes an intermediate position. The High Courts of Allahabad and
Andhra Pradesh have made amendments in Rule 3 of Order 17 in the years
1953 and 1961 respectively to put the matter beyond doubt that Rule 2 alone
applies to cases of default in appearance. For this reason, later decisions of these
Courts are not of assistance.
20. The Full Bench in Shantabai's case (supra), also relied on Dayal Chand v.
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Sham Mohan (AIR 1971 Delhi 183) and Ismail Suleman v. State (AIR 1971
Guj. 42). In the Delhi case, full evidence had been recorded and the
adjournment was given only for hearing arguments. No separate date for
hearing arguments being contemplated, this case in which Rule 3 was applied
even in the absence of a party is clearly distinguishable for this reason alone.
The Gujarat case holds that where there is enough material on record to decide
the suit on merits, Rule 3 can be applied even in the absence of a party. Gopi
Kisan v. Ramu (AIR 1964 Raj. 147) is a Full Bench decision of that Court
which holds that Rule 3 being a stringent provision, it should be applied with
circumspect caution and judicial restraint. All the same, it takes the view that
Rule 3 applies even in the absence of a party, since a case of double default
does not take away the case from the purview of Order 17, Rule 3. The fallacy
in the reasoning based on double default is already pointed out by us. The
learned Judges of the Rajasthan High Court disagreed with the Madras Full
Bench case already quoted by us and which has been followed in this Court at
least ever since the year 1930. We are unable to agree with the contrary view of
the Rajasthan High Court and it is not necessary to reiterate our reasons for the
same. The contrary view does not meet the effect of difference in the language
in the two Rules which is undoubtedly deliberate. Similarly, the intermediate
view is more a suggestion of a practical course. However, no difficulty
requiring a practical course arises if we give full effect to the plain and
unambiguous language of the two Rules. All this has been considered earlier at
length. We may also mention that the Orissa High Court expressly dissented
from the view of the Rajasthan High Court.
21. Thus, on a conspectus of all the authorities on the point, we are of the
opinion that there is no reason to depart from the settled view of this Court
prevailing at least ever since the year 1930 that Rule 3 of Order 17 pre-
supposes the presence of all the parties and to every case of default in
appearance of all or any of the parties, Rule 2 and not Rule 3 of Order 17, Civil
Procedure Code applies. We are also of the opinion that the view expressed by
Niyogi A. J. C. in Bhivraj v. Janardhan (AIR 1933 Nag. 370) together with the
reasons for that view correctly states the law on the point and that in Madanlal
v. Jainarayan (1971 MPLJ 916) the conclusion stated in para 19 of the decision
(except conclusion No. 7 therein) and the answers contained in para 20
correctly summarise the legal position including the remedies available to the
defaulting party in the different situations. It necessarily follows that the two
Single Bench decisions of P. R. Sharma J. in Kanhaiyalal v. Usmanali and
Sunderlal v. Motilal (1962 JLJ (Note) 169), the observations of the Division
Bench in Smt. Sita Bai v. Smt. Vidyawati (AIR 1972 MP 198) and the decision
in Shantabai v. Chokhelal (supra) are not correctly decided. This is our answer
to the first main question stated by us at the outset.''
18. Resultant to the above, the Full Bench of this Court in para 23 have
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answered question No. 3 framed by it particularly Clause (b) that, when the
plaintiff was asked to do something which he did not do, nor did he appear when
the case was called on hearing, the Order 17 Rule 2 of the Civil Procedure Code
would alone be attracted. Thus, the Court made it clear that absence of plaintiff
results in dismissal of suit in terms of Order 17 Rule 2.
19. The Hon'ble Apex Court recently in case of Amruddin Ansari (Dead)
through LRs vs. Afzjal Ali & Others, Special Leave to Appeal (C) No.
11442/2023 while considering the provisions of Order 9 Rule 2 of the CPC held in
para 26 as under:
''26. From a plain reading of the term "decree", it is manifestly clear that to
constitute a decree, there must be a formal expression of an adjudication which
conclusively determines the right of the parties with regard to all or any of the
matters in controversy in the suit, but the decree shall not include any
adjudication from which an appeal lies as an appeal from an order or any order
of dismissal for default. It is, therefore, evidently clear that a dismissal of a suit
or application for default particularly under Rule 2 or Rule 3 of Order IX of the
C.P.C. is not the formal expression of an adjudication upon any right claimed or
the defence set up in a suit. An order of dismissal of a suit or application in
default is also not appealable order as provided under Order XLIII of the C.P.C.
If we read Order XLIII C.P.C., we will find that orders passed under Order IX,
Rule 9 of the C.P.C. or Order IX Rule 13 of the C.P.C. are made appealable, but
order passed under Order IX Rule 4 of the C.P.C. is not appealable. It is,
therefore, clear that an order of dismissal of a suit or application in default under
Rule 2 or Rule 3 of Order IX of the C.P.C. is neither an adjudication or a decree
nor it is an appealable order. If that is so, such order of dismissal of a suit under
Rule 2 or Rule 3 of Order IX of the C.P.C. does not fulfill the requirement of the
term "judgment" or "decree", inasmuch as there is no adjudication. In our
considered opinion, therefore, if a fresh suit is filed, then such an order of
dismissal cannot and shall not operate a res judicata.''
(emphasis supplied)
20. Further, the Hon'ble Apex Court in a recent case of Prem Kishore &
Others vs. Brahm Prakash & Others reported in (2023) 19 SCC 244 considered
the provisions of Order 17 of the CPC and held in para 52 as under:
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''56. The power conferred on Courts under Rule 3 of Order 17 of the CPC to
decide the suit on the merits for the default of a party is a drastic power which
seriously restricts the remedy of the unsuccessful party for redress. It has to be
used only sparingly in exceptional cases. Physical presence without
preparedness to co-operate for anything connected with the progress of the case
serves no useful purpose in deciding the suit on the merits and it is worse than
absence. In any contingency, the discretion is always with the Court to resort to
Rule 2 or 3 respectively or to grant an adjournment for deciding the suit in a
regular way in spite of default. Rules 2 and 3 respectively are only enabling
provisions. In order to decide the suit on the merits, the mere existence of the
conditions enumerated in Rule 3 alone will not be sufficient. There must be
some materials for a decision on the merits, even though the materials may not
be technically interpreted as evidence. Sometimes the decision in such cases
could be on the basis of pleadings, documents and burden of proof. Anyhow, it
is appreciable for the Court to indicate by the judgment that the decision is for
default or on the merits. The only alternative of the Court in cases covered by
Rule 3 or the explanation to Rule 2 is not to decide on the merits alone. If such
an interpretation is given, it will amount to an unjustified preference to one who
purposely absents than to one who presents but unable to proceed with the case.
'Appearance' and 'presence' have well recognised meanings. They imply
presence in person or through pleader properly authorised for the purpose of
conducting the case. Rule 3 comes into play only when presence is to proceed
with the case, but default is committed in any one of the three ways mentioned
in Rule 2 or explanation to Rule 2 is extracted. Those are cases in which some
materials are there for the Court to decide the case on the merits and not cases
where decision could only be for default. That is clear from a combined reading
of Rules 2 and 3 respectively and the explanation. In this case, none of these
conditions were present and the decision was evidently for default. Rule 2 alone
is attracted. (See : R. Ravindran Petitioner v. M. Rajamanickam, 2006 SCC
OnLine Mad 169)''
21. It is thus clear that the order impugned is not an order deciding the
merits of the case. Order 17 Rule 2 provides that where on any date on which the
hearing of the suit is adjourned, the parties or any of them failed to appear, the
Court may proceed to dispose of the suit in one of the modes directed in that
behalf by Order 9 or make such other order as it thinks fit. Rule 3 of Order 17 on
the other hand provides that where any party to a suit to whom time has been
granted fails to produce its evidence or to cause the attendance of any witness or
fails to perform any other act necessary for the further progress of the suit for
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which time was granted on the last date, Court may notwithstanding such default,
if the parties are present proceed to decide the suit forthwith or if the parties or any
of them are absent, proceed under Rule 2. Thus, in absence of parties, Rule 3
redirects the Court to Rule 2 and Rule 2 provides to pass an order in terms of
Order 9 of the CPC. As the Full Bench of this Court has considered in the case of
Rama Rao (supra) , the legislature intended to apply Rule 2 alone and not Rule 3
to all cases of default in appearance of the parties. When disposal of the suit is by
one of the mode contained under Order 9 of the CPC on an application under
Order 17 Rule 2, express remedy is provided to the defaulting parties.
22. The judgments as relied upon by the learned Senior Counsel for the
appellant are not going to rescue the case of the appellant for the reason that in the
case of Maruti Damaji (supra) the decision was rendered before the Full Bench
decision of Rama Rao (supra) and the Full Bench in the said case considered the
case of Maruti Damaji (supra) whereafter the Full Bench expressly recorded in
para 23 while answering the question, "when the plaintiff was asked to do
something which he did not do nor did he appear when the case was called on for
hearing, the Full Bench answered that Order 17 Rule 2 of the CPC would alone be
attracted" thus, the same stands overruled in terms of the Full Bench decision. As
far as the decision in case of Harprasad (supra) is concerned, this Court
considered only two aspects. First, that the order says that it was passed in terms
of Order 17 Rule 3 and second that in case of Rama Rao (supra) the Order was
passed under Order 17 Rule 2. However, it did not consider the issue whether
recourse of passing order under Order 17 Rule 3 was available to the trial Court in
absence of plaintiff. There was no consideration at all on this issue in the said
case. The Hon'ble Supreme Court has now clarified the position with respect to
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order under Order 17 Rules 2 and 3 in the above cited two cases of Amruddin
(supra) and Prem Kishore (supra) . The above facts would show that the decision
in the case of Harprasad is limited to the facts of that case alone and cannot be
treated as a binding precedent on the proposition in hand. The aforesaid
judgments of the Hon'ble Apex Court as well as the Full Bench of this Court are
binding on this Court and for the same reason, the judgment cited by the learned
Senior Counsel in the cases of Farooq (supra) and Jabalpur Bus Operator (supra)
will also not apply, as this Court is bound by the ratio as laid down by the Full
Bench (5 Judges) in Ramarao (supra) as well as above cited two decisions of the
Hon'ble Supreme Court.
23. In this legal position and the decided case laws, if the impugned order
is seen then it would clearly come to the fore that the trial Court considered
absence of the plaintiff and his counsel. It then considered absence of its
witnesses and it further considered that duty/penalty has not been paid as per order
dated 06.04.2010, thus it dismissed the suit. However, while dismissing the suit,
the Court referred to Order 17 Rule 3 of the CPC but this mere mentioning would
not be enough as Order 17 Rule 3 provides that if the parties are present, the Court
would proceed to decide the suit forthwith and in the instant case, there is no
decision at all, no decree was drawn. Thus, present is a case where the impugned
order is squarely covered under Order 17 Rule 2 and resultantly, under Order Rule
9 and thus, remedy as provided under Order 9 of the CPC is available to the
appellant but certainly not in an appeal under Section 96 of the Code of Civil
Procedure.
24. In this view of the matter, the present appeal is not maintainable and
hence the same is hereby dismissed. However, the appellant is given liberty to
approach the proper forum by instituting proceedings as available to him against
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an order passed under Order 17 Rule 2 of the Civil Procedure Code and
consequently in terms of Order 9 CPC.
25. Resultantly, the appeal fails and is hereby dismissed however with the
aforesaid liberty.
Record of the Court below be sent back.
(PAVAN KUMAR DWIVEDI)
JUDGE
vidya
