Ch. Muhammad Ibrahim Zia, J.- This appeal by leave of the Court has been filed to challenge the legality of the judgment of the High Court dated 30.1.2014, whereby the writ petition filed by the appellant has been dismissed in limine.
2 The facts, in brief, are that the appellant herein filed an application before the Senior Civil Judge, Kotli on 16.10.2008 for cancellation of ex-parte decree passed on 17.11.2004. It was alleged that he was abroad and not aware of the institution of the suit. The newspaper in which the proclamation was issued is of local circulation.
The learned trial Court through order dated 13.09.2012 rejected the application. Against the order dated 13.09.2012, the appellant filed an appeal before the Additional District Judge, Kotli on 11.12.2012 which was dismissed vide order dated 14.3.2013. The appellant, feeling aggrieved, filed a writ petition before the High Court which has been dismissed through the impugned judgment in limine on the sole ground of availability of alternate remedy.
3. Mr. Muhammad Siddique Chaudhary, Advocate, the learned counsel for the appellant while narrating the necessary facts submitted that an ex-parte decree was passed on 17.11.2004 against the appellant herein who was abroad. When he returned back to country, he gained knowledge of the decree and filed application under the provisions of Order IX, Rule 13 of CPC for setting-aside the ex-parte decree. The said application was dismissed by the trial Court vide order dated 13.09.2012 which order is appealable under Order XLIII, Rule 1, CPC, hence, was challenged in appeal. The Additional District Judge, Kotli dismissed the appeal on 14.3.2013.
The order dated 14.3.2012 is final and no second appeal under the provisions of section 104 of Civil Procedure Code is maintainable, therefore, the writ petition was filed before the High Court. The learned High Court without attending the merits of the case dismissed the writ petition in limine through the impugned judgment on the sole ground that the order of the trial Court was appealable under the provisions of Order XVII, Rule 3, CPC and on dismissal of appeal second appeal under section 100 of the Civil Procedure Code is competent. He submitted that the conclusion drawn in the impugned judgment is result of misconception. The second appeal only lies when the first appeal is filed against the decree and not against the order. Against an order only one appeal is competent and second appeal is barred under the provisions of sub-section (2) of section 104, CPC. The statutory provisions have been over sighted by the learned High Court, hence, the impugned judgment is not maintainable.
4. Conversely, Mr. Muhammad Zubar Raja, Advocate, the learned counsel for the respondents forcefully defended the impugned judgment and submitted that the same is quite consistent with the statutory provisions of law as well as principle of administration of justice which does not suffer from any legal infirmity. The appellant has no legal justification to challenge the same, hence, this appeal has no merits and the same is liable to be dismissed.
5. We have heard the learned counsel for the parties and examined the record made available. The writ petition filed by the appellant has been dismissed in limine on the sole ground of availability of alternate remedy.
According to the stated facts an ex-parte decree was passed against the appellant who opted for filing application under the provisions of Order IX, Rule 13, CPC for setting aside the same. The application was dismissed for want of proof and non-compliance of the trial Court's order. In the dismissal order it is not mentioned that the same has been passed under the provisions of Order XVII, Rule 3, CPC, however, the learned High Court has treated it as an order passed under the provisions of Order XVII, Rule 3, CPC. It has been opined in the impugned judgment that the order passed under the provisions of Order XVII, Rule 3 is appealable and even the second appeal is also competent. The view expressed in the impugned judgment is not consistent with the statutory provisions of Civil Procedure Code. The order passed under Order XVII, Rule 13 is not specifically categorized to be appealable. The statutory provisions of Civil Procedure Code governing the competency of appeal are sections 96, 97,100,104 and 105. The first appeal is competent against both; the decree or order which falls within purview of section 96 or 104 read with Order XLIII, CPC. However, so for as the competency of second appeal is concerned, it is only confined to a decree passed by the first appellate Court. This legal proposition is further clarified under the provisions of sub-section (2) of section 104, CPC. The order passed by first appellate Court in appeal falling with the purview of section 104 is not further appealable.
According to the facts and propositions involved in this case, as the application for setting aside the ex-parte decree was rejected by the trial Court and no decree was passed, thus, the order is expressly appealable under the provisions of section 104 read with clause (c) of Rule 1, Order XLIII, CPC. Against the order passed on such appeal by the first appellate Court further appeal is barred under sub-section (2) of section 104, CPC.
6. So far as the observation of the High Court that the order has been passed under Order XVII, Rule 3 is concerned, such order may be of two types; one through which the suit is decreed by the trial Court. No doubt, against such order the right of appeal is available and second appeal is also competent as provided under the provisions of section 96 and 100 of the Civil Procedure Code. The second is mere an order not culminating into decree and falls in any of the provisions of Order XLIII read with section 104 of CPC. Against this order only one appeal is competent and no second appeal lies. As in this case, the learned trial Court has rejected the application for setting aside the decree and the order has not culminated into decree, hence, the same is appealable under the provisions of clause (c) of Rule 1, Order XLIII, CPC. Against the decision in first appeal, there is bar of further appeal as mentioned in sub-section (2) of section 104, CPC. Thus, the conclusion drawn by the learned High Court in the impugned judgment is not consistent with the statutory provisions, hence, the impugned judgment is not sustainable.
7. Consequently, while accepting this appeal the impugned judgment is set-aside and the case is remanded to the High Court for decision according to law after hearing the parties.
This appeal stands accepted with no order as to costs.