If order not consistent with the procedure known to law not sustainable - SC

Supreme court observed that the judgment and order passed by the High Court is unsustainable as it appears to have proceeded in a manner which is not consistent with the procedure known to law under Order IX Rule 13 CPC. The High Court's hearing of the appeal against the order passed on an application under that part of the Order is also unsustainable.

Facts - Appellants filed a suit for declaration and possession - suit proceeded ex parte  - Trial Court decreed the suit ex parte  As such the said suit proceeded ex parte and the judgment and decree passed by the Trial Court was ex parte decree  – after delay of 2 years and 7 months respondent appeal before the First Appellate Court and requesting to condone the delay – defendant withdrew the  application for condonation of delay - defendant withdrew the application for condonation of delay - no fresh application to condone the delay - dismissed the first appeal on the ground limitation and not go into the merits of the case - feeling dissatisfied preferred second appeal -- High Court has allowed the said second appeal - set aside the ex parte judgment and decree remanded the matter to the Trial Court for fresh decision – Appellant approached to Supreme court.

Apex court held that quashing and setting aside the judgment and decree passed by the Trial Court and remanding the matter back to the Trial Court is unsustainable. High Court proceeded in a manner which is not consistent with the procedure known to law because of that judgment and order passed by the High court quashed and set aside and matter remanded back to the First Appellate Court -appellant permitted to move an application for revival of application for condonation of delay - If delay condoned decide on its own merits .

Section 96 , Order IX Rule 13 CPC – Set aside Ex Parte Decree - Facts - Appellants filed a suit for declaration and possession - suit proceeded ex parte  - Trial Court decreed the suit ex parte  As such the said suit proceeded ex parte and the judgment and decree passed by the Trial Court was ex parte decree  – after delay of 2 years and 7 months respondent appeal before the First Appellate Court and requesting to condone the delay – defendant withdrew the  application for condonation of delay - defendant withdrew the application for condonation of delay - no fresh application to condone the delay - dismissed the first appeal on the ground limitation and not go into the merits of the case - feeling dissatisfied preferred second appeal -- High Court has allowed the said second appeal - set aside the ex parte judgment and decree remanded the matter to the Trial Court for fresh decision – Appellant approached to Supreme court. 

Held - quashing and setting aside the judgment and decree passed by the Trial Court and remanding the matter back to the Trial Court is unsustainable – High Court proceeded in a manner which is not consistent with the procedure known to law - judgment and order passed by the High court quashed and set aside – order - matter  remanded back to the First Appellate Court -appellant permitted to move an application for revival of application for condonation of delay - If  delay condoned decide on its own merits . 

D.D-JANUARY 18, 2022.

Mamtaz & Ors. Versus Gulsuma Alias Kulusuma