Order XLIII CPC | Conditional Orders Allowing Restoration Of Suits And Imposing Penalties Are Appealable: Kerala High Court

The Kerala High Court has held that an order allowing the restoration of a dismissed suit for non-prosecution or setting aside an ex-parte decree, when accompanied by a conditional order imposing a penalty or cost, is an appealable order under Order XLIII of the CPC.

Justice P. Somarajan reasoned that non-compliance with the condition will effectively result in rejection of the restoration application and such order is thus, appealable.

"When there is a conditional order allowing an application either under Rule 9 or Rule 13 of Order IX CPC with a default clause of rejection of application, it would squarely come under either of the abovesaid clauses (c) or (d), hence the order is appealable. The reason behind it is that on account of non-compliance of condition, it will have the effect of rejecting the application under the abovesaid provision. Necessarily, it is an appealable order under Order XLIII CPC."

The petitioners had approached the Court under Article 227 of the Constitution challenging an order allowing the restoration of a suit which was dismissed for non-prosecution. They were represented by Advocates Aashique Akthar Hajjigothi and P.M Mohammed Salih.

Advocates Najah Ebrahim VP, R. Rohith and Harishma P Thampi appearing for the respondents argued that there is no provision under Order XLIII enabling an appeal against an order allowing restoration of the suit under Rule 9 or setting aside ex parte decree under Rule 13 of Order IX. On that ground, they argued that an appeal will not lie against the impugned order.

However, the Court noted that the impugned order was a conditional order, by which the trial court had imposed a penalty/cost of Rs.10,000/- as a condition precedent to allow the application. 

The Court noted that the provision for appeal from an order under Rule 9 or Rule 13 of Order IX is confined only to orders rejecting an application under these Rules by virtue of Clause (c) and (d) of Order XLIII.

When there is a conditional order allowing an application either under Rule 9 or Rule 13 of Order IX with a default clause of rejection of the application, it would come under either clause (c) or (d), hence the order is appealable because, on account of non-compliance of condition, it will have the effect of rejecting the application. 

In this matter, the reasonability of the amount and the direction to pay the sum within three days were challenged by the petitioner. The High Court found that the time granted and the amount ordered did not reflect the proper application of discretion vested with the trial court. However, since it is an appealable order, Justice Somarajan observed that a larger remedy is available to the party by way of an appeal.

The petitioners then submitted that some of the respondents had passed away during the pendency of the case, but admitted that their respective legal heirs are in the party array of the proceedings. At this juncture, the petitioners pressed for a dismissal without prejudice to the right of exhausting the larger remedy as per lex fori and lex loci.

As such, the matter was dismissed as not pressed. 

Case Title: Cheriyathoda Cheriyakoya & Ors v. Cheriyathoda Kunni Kunni & Ors

Citation: 2022 LiveLaw (Ker) 307

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