Defendant who has suffered an ex parte decree passed by Family Court has Right of Appeal

Meghna Gopal Vs Praveen Chandran

Kerala HC

27/09/2018

Mat.Appeal.No. 469 of 2018

About/from the judgment:

Civil P.C. 1908 - O. 9 R. 13 - Family Courts Act, 1984 - S. 19 - Hindu Marriage Act, 1955 - Ss. 13(1)(ia), 13(1)(ib) & 13(1)(iii) - Defendant who has suffered an ex parte decree passed by the Family Court has right of appeal against such decree though he has not exercised his remedy under Order IX Rule 13 of the Code.

 

Held: Right of appeal provided under a statute is not taken away unless it is in derogation or contrary to any other statutory provision. There is no such provision which takes away the right of appeal provided to a party under S.19 of the Family Courts Act, 1984. Therefore, the defendant who has suffered an ex parte decree passed by the Family Court has right of appeal against such decree though he has not exercised his remedy under Order IX, R.13 of the Code. A defendant against whom an ex parte decree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX, R.13 of the Code. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is also not taken away by filing an application under Order IX, R.13 of the Code. However, in view of the Explanation provided to Order IX, R.13 of the Code, if the appeal is disposed of on any ground other than withdrawal of it by the appellant, then no application under Order IX, R.13 of the Code shall lie. The reason is that the ex parte decree merges with the decree of the appellate court. But, the Explanation provided to Order IX, R.13 of the Code suggests that dismissal of the application filed for setting aside the ex parte decree does not bar an appeal from the original decree. When an application under Order IX, R.13 is dismissed, the remedy of the defendant is to file an appeal against such order. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal filed against the decree. (Paras.7 & 8)

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