Appeal from original suit
s b krishna
(Querist) 26 December 2011
This query is : Resolved
Whether a defedant who was ex-parte in the proceedings in the original suit is entitled to prefer an appeal against the decree passed in the said suit?
Nadeem Qureshi
(Expert) 26 December 2011
Dear Krishna
within 90 days the defendant has right to file an application for set-aside. after that the defendant can file an appeal before the court against Decree
feel free to call
prabhakar singh
(Expert) 26 December 2011
If the first appeal lies in High court then only 90 days in case it lies before District judge the limitation to file appeal would be only 30 days.To file application to set aside exparte in same court would be 30 days from knowledge.
116.
Under the Code of Civil Procedure,1908
(a) To a High Court from any decree or order;
Ninety days
The date of the decree or order.
(b) To any other court from any decree or order.
Thirty days
The date of the decree or order.
...........................................
123.
To set aside a decree passed ex prate or to rehear an appeal decree or head ex prate.
Explanation - For the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service.
Thirty days
The date of the decree or where the summons or notice was not duly served when the applicant had knowledge of the decree.
Devajyoti Barman
(Expert) 26 December 2011
He can either file application under order 9 rule 13 of cpc within 30 days from the date of decree in the same court for setting aside the ex parte decree or prefer appeal against the ex parte decree.
He will need to choose only one of these measures not both.
prabhakar singh
(Expert) 26 December 2011
BUT utilizing restoration remedy would prove better than filling appeal.
Advocate Bhartesh goyal
(Expert) 27 December 2011
you have two options against ex-parte decree
{1}file application u order 9 rule 13 of C.P.C for setting aside ex-parte decree
{2}file regular first appeal u/s 96 read with order 41 rule 1 of C.P.C
but better you opt setting aside ex-parte decree u o 9 r 13 of C.P.C
Sankaranarayanan
(Expert) 27 December 2011
I do agree with my learned friends opinion
Dr J C Vashista
(Expert) 29 December 2011
Setting aside decree u/o IX Rule 13 CPC is permissible, from the date of knowledge (to be proved) if defendant was not served as required under Order V CPC.
Otherwise, RFA.
