Whether order of setting aside exparte decree is appealable?

Similarly, suppose the Trial Judge passes an
Order setting aside an exparte decree against the
defendant, which is not appealable under any of the
clauses of O. 43 R.1 though an order rejecting an
application to set aside the decree passed exparte falls6
within O. 43 R.l cl. (d) and is appealable, the serious
question that arises is whether or not the order first
mentioned is a judgment within the meaning of Letters
Patent. The fact, however, remains that the order
setting aside the ex-parte decree puts the defendant to
a great advantage and works serious injustice to the
plaintiff because as a consequence of the order, the
plaintiff has now to contest the suit and is deprived of
the fruits of the decree passed in his favour. In these
circumstances, therefore, the order passed by the Trial
Judge setting aside the ex parte decree vitally affects
the valuable rights of the plaintiff and hence amounts
to an interlocutory judgment and is therefore,appealable to a larger Bench.”

 HIGH COURT OF ORISSA: CUTTACK.
 MATA NO.72 OF 2015


Gyanasis Jena V Smt.Rekha Swain 
 Date of Order : 08.09.2016

P R E S E N T:
 THE HONOURABLE SHRI JUSTICE B.K.NAYAK
A N D
 THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 Orissa 163

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How to determine that an order is appealable in Arbitration proceeding?

  I think the learned counsel for the appellants is right in

saying   so.     Although,   the   argument   of   learned   counsel   for   the

respondents looks impressive at  first  blush, on a deeper examination

one can say it has no force.  The immediate impact of the  impugned

order  may  be  innocuous  as  it  neither  grants nor  refuses  to grant

interim measure under Section 9 and it merely returns the application

to the appellants for being presented to an appropriate forum.   But

the impact also has its ripple effect which hits   the appellants   and

even the respondents in an adverse manner.  The ripple effect in this

case  is quite like a seismic wave which causes more damage at farther

distance than at the origin or at the epicentre as far as the party

seeking the interim measure under Section 9 of the Arbitration Act is

concerned.   A preliminary objection taken on the ground of lack of

jurisdiction  when wrongly decided, would defeat the valuable right of

the party to get immediate protection.  The purpose of Section 9 is to

swing   law   into   motion   without   any   loss   of   time   to   preserve   the

property, secure the amount in question,  maintain status quo  and the

like.     This   right   of   the   party   to   approach   the   Court   for   getting

immediate   interim   relief     under   Section   9   would   be   seriously

prejudiced, when the preliminary objection is upheld wrongly.  This is

because if later on it is found that the Court upholding the preliminary

objection did have the jurisdiction and the other Court to whom that

party was directed did not have the jurisdiction, the position will be

back to square one.  Similarly, if the preliminary objection is wrongly

rejected   and   the   proceedings   of   the   application   are   continued,

although ought not to have been continued, a valuable right of the

defendant, who is otherwise entitled to get the application dismissed

on   a   preliminary   ground,   would   also   be   seriously   imperilled.

Therefore, appelability of an order has to  be guaged by not only its

immediate effect but also  its ripple effect.  If the ripple effect  brings

the order within the circumference of  Section 9,  it would be an order

appealable under Section 37(1)(b) of the Arbitration Act, which is

what the order impugned herein is. 

IN THE HIGH COURT OF  BOMBAY AT GOA

GOA­ PANAJI

APPEAL UNDER ARBITRATION ACT No.2 OF 2015

    M/s. Nivaran Solutions  V   M/s. Aura Thia Spa Services

       Pvt. Ltd.

CORAM  :   S.B. SHUKRE, J.         

    

    DATED :    4th MAY    , 201  6.

Citation:2016(5) MHLJ234

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