NDLI: N. Mohan Vs. R. Madhu

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Or. IX r.13 and s.96(2) delay of 546 days in filing the first appeal
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Code of Civil Procedure, 1908 (5 of 1908)
Case(s) Referred	Referred Case 0 Referred Case 1
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Disposed Off
Headnote	Code of Civil Procedure, 1908 – Or. IX, r.13 and s.96(2) – Respondent-plaintiff case was that he lent appellant a sum of Rs.45,00,000/- and appellant-defendant failed to return the said amount – The suit was decreed ex-parte – Thereafter, appellant filed application u/s.5 of the Limitation Act to condone delay of 276 days in filing the petition u/Or. IX, r.13 CPC to set aside the ex-parte decree – The petition was dismissed by the Trial Court and revision against the same was dismissed by the High Court – The SLP preferred against the said order also came to be dismissed by the Supreme Court – After dismissal of SLP, the appellant filed first appeal along with application to condone the delay of 546 days – High Court dismissed the application for condonation of delay on the ground that in the earlier proceedings u/Or. IX, r. 13 CPC, the appellant had stated the same reasons to set aside the ex-parte decree and same was not accepted by the Trial Court, High Court and the Supreme Court – On appeal, held: Right to file and appeal u/s.96(2) CPC is a statutory remedy – The right to appeal is not mere matter of procedure; but is a substantive right – Right to appeal u/s.96(2) CPC challenging the original decree passed ex-parte, being a statutory right, the defendant cannot be deprived of the statutory right thereby on the ground that the application filed u/or. IX, r. 13 CPC was earlier dismissed – Whether the defendant has adopted dilatory tactics or where there is a lack of bona fide in pursuing the remedy of appeal u/s. 96 (2) CPC, has to be considered depending upon facts and circumstances of each case – In the instant case, the appellant has shown his bonafide by depositing Rs. 25,00,000/ - in the compliance with the orders of the Supreme Court – Considering the facts and circumstances of the case and in the interest of justice, appellant granted opportunity to put forth his defence in the suit for recovery of money – To avail this opportunity, appellant directed to deposit the balance amount of Rs. 20,00,000/-, the delay of 546 days in filing the first appeal condoned.
Judge	Hon'ble Ms. Justice R. Banumathi
Neutral Citation	2019 INSC 1270
Petitioner	N. Mohan
Respondent	R. Madhu
SCR	[2019] 14 S.C.R. 156
Judgement Date	2019-11-21
Case Number	8898

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