- (1.) THIS appeal has been filed against the order dated 15.02.1999, whereby, the application filed by the appellant under Order IX, Rule 13 CPC has been dismissed as not maintainable. The brief facts of the case are that the respondent Iqbal Singh filed a suit for specific performance of agreement dated 15.09.1982 before the Court of Additional District Judge, Raisinghnagar. After issuance of summons, when no written statement was filed despite providing opportunity, the right to file written statement has been closed and the suit was decreed under Order VIII, Rule 10 CPC.
(2.) AFTER passing of the decree, present application under Order IX, Rule 13 CPC was filed setting out grounds for the reasons which led to appellant's failure to file the written statement within time granted by the Court. The learned trial court after hearing the parties, came to the conclusion that the judgment passed under the provisions of Order VIII, Rule 10 CPC is in the nature of a decree in terms of express provisions of Rule 10 of Order VIII CPC and only first appeal under Section 96 CPC would be maintainable as the provisions of Order IX, Rule 13 CPC are applicable where a decree is passed ex parte. In that view of the matter, the application under Order IX, Rule 13 CPC was dismissed as not maintainable. I have heard learned counsel for the parties and perused the material placed on record. It was submitted by learned counsel for the appellant that the nature of decree passed under Order VIII, Rule 10 CPC is that of a ex parte decree, inasmuch as, no written statement is there on record and, therefore, application under Order IX, Rule 13 CPC is maintainable. It was further submitted that in any case the present appeal may be treated as an appeal against the decree passed under Order VIII, Rule 10 CPC and that the appellant was prepared to pay the requisite court fees.
(3.) ON the other hand, learned counsel for the respondent supported the judgment passed by the learned trial court. It was submitted that the provisions are quite clear and explicit and the order impugned does not require any interference by this Court. I have considered the rival submissions made at the Bar. Admittedly, in the present case, the decree was passed on 31.01.1995 after service of summons on the appellant and in the presence of his counsel and, in view of non-filing of the written statement under the provisions of Order VIII, Rule 10 CPC.;