The bench dismissed the appeal as the application to set aside the ex-parte decree remained pending with the appellate court, invoking limitation bars.
Appeal dismissed; liberty to pursue proceedings under Order IX Rule 13 CPC r/w Order XLVII Rule 1 CPC before the appellate court.
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1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
: J U D G M E N T :
S.B. CIVIL SECOND APPEAL NO.164/2012
Harlal & Ors. Vs.
Shankar & Ors.
Date of Judgment :: 9.5.2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Zafar Khan, for the appellant/s.
BY THE COURT:
An averments has been made in the application under Section 5 of the Limitation Act that after passing of the impugned ex-parte decree by the first appellate court, the application under Order IX, Rule 13 CPC r/w Order XLVII, Rule 1 CPC r/w Section 151 CPC has been filed before the appellate court.
It is submitted by learned counsel for the appellants that the application is still pending.
In view of the fact that in the present appeal the issue raised inter-alia pertains to passing of ex-parte decree and the same is barred by 2108 days, it would be appropriate for the appellants to pursue the application filed under Order IX, Rule 13 CPC r/w Order XLVII, Rule 1 CPC before the appellate court as in view of Bhanu Kumar Jain v. Archana Kumar : AIR 2005 SC 626 (para 38), the appeal even otherwise is not maintainable.
2
In that view of the matter, the present appeal is dismissed with liberty to the appellants to pursue the proceedings under Order IX, Rule 13 CPC r/w Order XLVII, Rule 1 CPC.
(ARUN BHANSALI), J.
rm/4
2 issues framed by the court
Whether the appeal is maintainable when the application for setting aside an ex-parte decree is pending.
Whether the limitation period bars the present appeal regarding the passing of an ex-parte decree.
Colour shows how this judgement treated each authority
Bhanu Kumar Jain v. Archana KumarReferred¶15
_Bhanu Kumar Jain v. Archana Kumar : AIR 2005 SC 626 (para 38) · Who else cites this
3 provisions across 3 enactments
Harlal & Ors.
Shankar & Ors.
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Arun Bhansali
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