Order 9 rule 13 rejected, defendant thereafter filled appeal under order 41 rule 1 along with delay
Adv.S.A.N.Baroodkar
(Querist) 06 November 2016
This query is : Resolved
Dear Sir/Madam,
A Suit was filed, Defendant appeared Filled W.S., Issues Framed thereafter remained absent, the plaintiff and his PW filled Evidence and the Suit was decree, exectuion petition filled.
There after the Defendant filed application U O.9 R.13 to set a site exparte decree, which as rejected.
thereafter 8 months later filed appeal U/s 96 R/W O.41 R.1 along with delay condolence application challenging the original decree as exparte (Delay has be Condone)
please help me with any citation to get the Appeal Dismiss
Kiran Kumar
(Expert) 06 November 2016
Well it will be a matter of interpretation of facts and circumstances.
The court will have to look into entire set of facts and circumstances.
The court may direct the applicant sufficient evidence against the pleadings made in an application for condonation of delay.
The Law is to be applied as per circumstances.
Advocate M.Bhadra
(Expert) 06 November 2016
After contesting the suit by filing written statement, order 9 rule 13 does not lie. The Defendant can only appeal which will be based on merit. If there is no stay then execution will proceed.
Adv.S.A.N.Baroodkar
(Querist) 07 November 2016
Thank you Mr. Bhadra Sir,
Its Undisputed that the proceedings can be taken in concurrence under O.9 R.13 & S.96 to set aside exparte, as in case of concurrence filling of both if the application under O.9 R.13 is dismiss then to defendant can proceed with O.41 R.13. but same in not in case of vice versa
but the technical aspect is that can a appeal be filed under O.41 R.13 after dismal of application under O.9 R.13 or it must go under O.43
please do give more light on this.
