In CIVIL APPEAL NO.7903 OF 2023-SC- Revision Petition u/s 115 of CPC would not arise when application under Order IX Rule 13 is dismissed; appeal is maintainable only against refusal to set aside ex-parte decree: SC
Justices B.V. Nagarathna & Ujjal Bhuyan [01-12-2023]

Read Order: THE KOUSHIK MUTUALLY AIDED COOPERATIVE HOUSING SOCIETY v. AMEENA BEGUM & ANOTHER

Tulip Kanth

New Delhi, December 19, 2023: The Supreme Court has clarified 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. The Top Court also opined that Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed.

Briefly stated, the facts were that the appellant had filed a suit seeking a decree of specific performance of an agreement to sell dated 26.04.1985. In the said suit, the respondents were set ex-parte. Thereafter, an ex-parte decree was passed. The execution proceedings as against the ex-parte decree were still pending before the Executing Court.

However, the first respondent herein filed an application seeking setting aside of ex-parte decree 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. The Civil Judge dismissed interlocutory application 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.

Being aggrieved, the first respondent filed a Civil Revision Petition under Section 115 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. In the Civil Revision Petition, the High Court condoned the delay & directed the Trial Court to dispose of the petition filed under Order IX Rule 13 and complete the trial of the suit expeditiously.Being aggrieved by this order, the plaintiff/appellant had preferred the appeal in question.

Placing reliance upon Order XLIII Rule 1(d) CPC as well as Section 115, the Division Bench, comprising of Justice B.V. Nagarathna & Justice Ujjal Bhuyan,  observed that as against the ex-parte decree, a defendant has three remedies available to him. First, is by way of filing an application under Order IX Rule 13 seeking for setting aside ex-parte decree; the second, is by way of filing an appeal against the ex-parte decree under Section 96(2) and the third, is by way of review before the same court against the ex-parte decree.

Declaring that an appeal against an ex-parte decree even after the dismissal of an application under Order IX Rule 13  is maintainable, the Bench further noted that against the order passed under Order IX Rule 13 CPC rejecting an application for seeking setting aside the decree passed exparte, an appeal is provided. When an application is filed seeking condonation of delay for seeking setting aside an ex-parte decree and the same is dismissed and consequently, the petition is also dismissed, the appeal under Order XLIII Rule 1(d) CPC is maintainable, it added.

“Thus, an appeal only against the refusal to set aside the ex-parte decree is maintainable whereas if an order allowing such an application is passed, the same is not appealable”, the Bench said.

Considering the fact that Civil Revision Petition under Section 115 would not arise when an application/petition under Order IX Rule 13 is dismissed, the Bench made it clear that 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 Bench further noticed while also adding that when there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passing the same, a Revision Petition cannot be filed. It was also opined that in the absence of an appellate remedy, a revision may be maintainable.

“It is clarified that once the Trial Court dismissed the application seeking condonation of delay in filing petition under Order IX Rule 13 CPC, and consequently, the main petition under Order IX Rule 13 CPC also stood dismissed which is also noted by the trial Court”, the Bench held while dismissing the appeal.

On the request of the Counsels, the Bench 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. However, liberty was reserved to the first respondent to file an appeal under Order XLIII Rule 1(d) CPC on or before December 31, 2023.