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sudhirghabasu (advocate)     18 August 2017

C.p.c.,

dear learned friends, best wishes, in an under chapter suit the Leave to Defend Petition filed by the defendant was dismissed and eventually the suit was dismissed. whether the remedy available Defendant is to file an appeal or Civil Revision before the High court. there are mixed opinions from my colleagues. what do you experts say. else I can file a set aside petition under order XXXVII Rule 5 C.P.C., what is the position of law. would be more helpful if advised with Citations.


Learning

 2 Replies

Siddharth Srivastava (Advocate)     18 August 2017

If leave to defend was dismissed then how suit was dismissed. Suit must have to be decreed in the light of your query. If you are not satisfied with the order then go for appeal. However, it depend on fav s of the case and order. In case of need consult with details.

Azhagananth (Lawyer)     19 August 2017

Order XLIII : APPEALS FROM ORDERS

1. Appeal from orders

An appeal shall be from the following orders under the provisions of section 104, namely :-

    (a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court 31[except where the procedure specified in rule 10 A of Order VII has been followed];

    32[***]

    (c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

    (d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;

    32[***]

    (f) an order under rule 21 of Order XI.;

    32[***]

    (i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

    (j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

    31[(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.]

    (k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

    (1) an order under rule 10 of Order XXII giving or refusing to give leave;

    33[***]

    (n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

    31[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]

    33[***]

    (p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;

    (q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;

    (r) an order under rule 1, rule  [rule 2A], rule 4 or rule 10 of Order XXXIX;

    (s) an order under rule 1 or rule 4 of Order XL;

    (t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;

    (u) an order under rule 23 31[or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate court;

    33[***]

    (w) an order under rule 4 of Order XLVII granting an application for review.

31[1A. Right to challenge non-appealable orders in appeal against decrees

    (1) Where any order is made under this Code against a party and there upon any judgement is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgement should not have been pronounced.

    (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]

2. Procedure

The rules of Order XLI shall apply, so far as may be, to appeals from orders,

 

 

 


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