AI Structured Summary
Not yet generated for this judgment
Judgment
K. Ravichandrabaabu, J.—The present Civil Revision Petition is filed against an order passed by the court below in dismissing the
application filed under Order 9 Rule 13 CPC. The petitioners are the defendants 2 and 3 in O.S. No. 21 of 2006 on the file of the Sub Court,
Pollachi. The said suit was filed by the respondent herein for recovery of money based on promissory note. On 23.7.2007 an ex parte decree
came to be passed in the said suit. The petitioners filed I.A. No. 634 of 2009 on 22.8.2007 seeking to set aside the said ex parte decree. The
application was allowed subject to payment of cost of Rs. 1,000 to the respondent/plaintiff. As the cost was not paid within the time stipulated, the
said application was subsequently dismissed on 7.8.2012. Aggrieved against the said order of dismissal, the present Civil Revision Petition is filed.
Learned counsel appearing for the respondent/plaintiff raised a preliminary objection with regard to the maintainability of the revision petition to
the effect that as against the order of dismissal passed in an application filed under Order 9 Rule 13 CPC, only an appeal is maintainable under
Order 43 Rule 1 sub-clause (d) CPC. Therefore, he contended that the present Civil Revision Petition is not maintainable.
It is true that the challenge in this Civil Revision Petition is against the order of dismissal passed by the court below in an application filed under
Order 9 Rule 13 CPC. Though the learned counsel for the petitioners contended that the application was originally allowed on terms, the fact
remains that the very same application was subsequently dismissed on 7.8.2012 as the cost was not paid. Thus, the net result is that the application
under Order 9 Rule 13 CPC was dismissed by the Court below. Such order of dismissal is only an appealable order as contemplated under Order
43 Rule 1(d) CPC. Therefore, I am of the view that the Civil Revision Petition is not maintainable and the same is liable to be dismissed.
Accordingly, the Civil Revision Petition is dismissed as not maintainable without going into the merits and contentions of the parties. Consequently,
the connected M.P. is closed. No costs. Learned counsel for the petitioners seeks liberty to file an appeal as against the impugned order. As I am
dismissing the Civil Revision Petition only on the ground of maintainability, it is open to the petitioners to file an appeal under Order 43 Rule 1(d)
CPC. While filing such appeal, it is for them to convince the Court on the question of limitation by pointing out the pendency of the Civil Revision
Petition before this Court during the interregnum.