Wrong Turn on the Legal Road? Supreme Court Corrects High Court’s Order in Ex Parte Case.
CASE TITLE – The Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum & Anr.
CASE NUMBER – 2023 INSC 1065 (Neutral Citation)
DATED ON – 01.12.2023
QUORUM – Justice B.V. Nagarathna & Justice Ujjal Bhuyan
FACTS OF THE CASE
In the said suit, the respondent(s) herein were set ex-parte. Thereafter, an ex-parte decree was passed on 15.02.1999. It is stated that execution proceedings as against the ex-parte decree are still pending before the Executing Court. However, the first respondent herein filed an application on 07.01.2016 seeking setting aside of ex-parte decree dated 15.02.1999 along with an application under Section 5 of the Limitation Act, 1963 seeking condonation of 5767 days delay in filing the said application seeking setting aside of ex-parte decree. By order dated 07.06.2018, the V-Senior Civil Judge, City Civil Court, Hyderabad dismissed I.A. No.30/2016 filed for seeking condonation of delay of 5767 days in filing the application seeking setting aside of the ex-parte decree under Oder IX Rule 13 Code of Civil Procedure, 1908 (‘CPC’ for the sake of convenience). The said application was considered by the Trial Court and by order dated 07.06.2018, the application seeking condonation of delay was dismissed. Consequently, the petition filed under Order IX Rule 13 CPC seeking setting aside of the ex-parte decree also stood dismissed. Being aggrieved, the first respondent herein filed a Civil Revision Petition under Section 115 of the CPC before the High Court contending that Trial Court was not right in dismissing the application seeking condonation of delay of 5767 days in filing the petition to set aside the ex-parte decree dated 15.02.1999. By the impugned order dated 08.01.2021, the High Court has set aside Order dated 07.06.2018 passed in I.A. No.30/2016 in O.S. No.1144/1988, which also implies that the petition filed under Order IX Rule 13 CPC which had also stood dismissed has been allowed. In the Civil Revision Petition, the High Court condoned the delay of 5767 days in filing the petition filed under Order IX Rule 13 CPC seeking setting aside the ex-parte decree dated 15.02.1999 by directing the Trial Court to dispose of the petition filed under Order IX Rule 13 CPC and to complete the trial of the suit expeditiously. Being aggrieved by the said order passed in Civil Revision Petition by the High Court, the plaintiff/appellant has preferred this appeal.
ISSUE
Whether a civil revision petition under Section 115 of the CPC is the appropriate remedy to challenge the dismissal of an application filed under Order IX Rule 13 CPC seeking to set aside an ex-parte decree.
COURT ANALYSIS AND JUDGEMENT
The Hon’ble Supreme Court stated that the filing of an application under Order IX Rule 13 CPC as well as the filing of appeal under Section 96(2) of the CPC against the ex-parte decree are concurrent remedies available to a defendant. However, once the appeal preferred by the defendant against the ex-parte decree is dismissed, except when it is withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued. Conversely, if an application filed under Order IX Rule 13 CPC is rejected, an appeal as against the ex-parte decree can be preferred and continued under Section 96(2) of the CPC. Thus, an appeal against an ex-parte decree even after the dismissal of an application under Order IX Rule 13 CPC is maintainable. They further stated that the rejection of a petition filed under Order IX Rule 13 CPC is an appealable order and, therefore under Order XLIII Rule 1(d) CPC, an appeal ought to have been filed before the High Court rather than a Civil Revision Petition under Section 115 of the CPC. The hon’ble Supreme Court held that when an application or petition filed under Order IX Rule 13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC. Thus, Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed. Thus, when an alternative and effective appellate remedy is available to a defendant, against an ex-parte decree, it would not be appropriate for the defendant to resort to filing of revision under Section 115 of the CPC challenging the order refusing to set aside the order of setting the defendant ex-parte. In view of the appellate remedy under Order XLIII Rule 1(d) CPC being available, revision under Section 115 of the CPC filed in the instant case was not maintainable. The Court stated that In the circumstances, they have chosen to set aside the impugned order on the ground that the said order was passed in a Civil Revision Petition which was not at all maintainable under Section 115 of the CPC. However, liberty is reserved to the first respondent herein to file an appeal under Order XLIII Rule 1(d) CPC, if so advised, on or before 31.12.2023, and If such an appeal is filed before the High Court, the point of limitation ought not to be raised by the High Court.
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Judgement Reviewed by – Gnaneswarran Beemarao
