Heard Shri H.M. Srivastava, learned counsel for the appellant.
This First Appeal From Order has been filed under Order 43 Rule 1(t) of the Civil Procedure Code, whereby a belated application filed by the appellant, for recall of an order dated 03.09.1996, was dismissed on the ground that it was not accompanied by any affidavit in support of the application under Section 5 of the Limitation Act for condonation of delay.
The order dated 03.09.1996, an appeal filed by the appellant was ordered to abate on the ground of non substitution of the respondent therein.
The provision which has been invoked in this F.A.F.O., namely Order 43 Rule 1(t) is quoted herein below:-
"Order 43 Rule 1(t):- an order of refusal under Rule 19 of Order XLI to readmit, or under Rule 21 of Order XLI to rehear, an appeal"
For an F.A.F.O. to lie under Order 43 Rule 1(t), the order appealed against must either be an order under Order 41 Rule 19 or one under Order 41 Rule 21.
The order impugned is not an order under Rule 41 of Order 41 because the application before the Court below was filed by the plaintiff-appellant and not the respondent. The said Rule 21 deals with applications filed by a respondent, against whom an ex parte decree has been passed. The appellant in the instant case was the appellant-applicant before the Court below.
Rule 19 of Order 41, which alone may be applicable in the instant case empowers the Court to readmit an appeal dismissed under Rule 11 Sub-rule 2. The said sub rule reads as follows:-
"(2) If on the day fixed or on any day to which the hearing may be adjourned the appellant does not appear when the appeal is called for hearing, the Court may make an order that the appeal is dismissed."
Thus, Rule 17 of Order 41 deals with the dismissal of an appeal for the appellant's default.
As already noticed herein above, the appeal of the appellant had been dismissed as abated since no application to substitute the deceased/respondent had been filed despite a period of two and a half year having elapsed since his death. The order of the appellate Court was thus, an order passed under Order 22 Rule 4(3).
It is therefore, clear that the order sought to be recalled was not an order passed under either Rule 19 or Rule 21 of Order 41 and therefore Order 43 Rule 1(t) cannot be invoked to challenge it.
The instant FAFO is therefore, not maintainable under Order 43 Rule 1(t).
It is accordingly dismissed.
Order Date :- 23.9.2016 Mayank