REMEDY AGAINST ex-parte DECREE

[Mr. M. GOVINDARAJAN]

In a civil case hearings will be offered by Court to the plaintiff and respondent to appear before the Court to put forth their submissions and produce documents that may require proving the case.  If the plaintiff does not appear in the hearing the suit will be dismissed.  If the defendant does not appeal the Court will pass an ex-parte order.  The aggrieved party is to file application before the Court seeking to set aside the ex-parte order.  If the court satisfies than it will set aside the ex-parte order.  If no step is taken to set aside the ex-parte order the Court, then, will in the absence of the said party decide the case on merits and considering the documents on record and pass ex-parte decree.  What is the remedy available against such ex-parte decree?  The Supreme Court discussed the same in detail in KOUSHIK MUTUALLY AIDED COOPERATIVE HOUSING SOCIETY VERSUS AMEENA BEGUM AND ANOTHER - 2024 (2) TMI 3 - SUPREME COURT.

In the above said case the appellant filed a civil suit in OS No.1144/1988 seeking a decree of specific performance of an agreement to sell.  In the suit the respondents were set ex-parte.  On 15.02.1999 ex-parte decree was passed.  An execution proceeding was initiated and the same is still pending before the Executing Court.  The first respondent filed an application on 07.01.2016 seeking setting aide of ex-parte decree.  The first respondent filed an application under Section 5 of the Limitation Act seeking condonation of 5767 days delay in filing the said application.

The Civil Court dismissed the application seeking condonation of delay.  The Trial Court also dismissed the application seeking setting aside the ex-parte order.  The first respondent filed a Civil Revision Petition against the said order of the Trial Court before the High Court.  Before the High Court the first respondent contended that the Tribal Court was not right in dismissing the applications.  The High Court condoned the delay in filing application seeking setting aside the ex-parte decree.  The High Court directed the Trial Court to complete the trial as quickly as possible within a period of 4 months from the date of receipt of order of High Court.

Being aggrieved against the order of High Court, the appellant (plaintiff in the original suit) filed the present appeal before the Supreme Court. 

The Supreme Court heard the submissions of both the parties.  The Supreme Court put a query as to the maintainability of the Civil Revision Petition against an order passed by the Trial Court dismissing the application filed seeking condonation of delay in filing the petition. 

The Supreme Court analyzed the provisions of Order XLIII Rule 1 and Section 115 (dealing revision petition) of the Civil Procedure Code (‘Code’ for short).

The Supreme Court observed that against the ex-part decree, a defendant has three remedies available against the ex-parte decree under Section 96(2) of the Code as detailed below-

1. By way of filing an application under Order IX Rule 13 of the Code seeking for setting aside ex-part decree;
2. By way of filing an appeal against the ex-parte decree under section 96(2)of the Code; and
3. By way of review before the same Court against the ex-parte decree.

The Supreme Court further observed that the first two remedies are the concurrent remedies available to defendant.  Once the appeal is preferred against the ex-parte decree is dismissed, except when it is withdrawn, the remedy under order IX Rule 13 cannot be pursued.  If the application is filed under Order IX Rules 13 is rejected, an appeal against the ex-parte decree can be preferred and continued under Section 96(2) of the Code.  Thus the Supreme Court held that an appeal against an ex-parte decree is maintainable even after the dismissal of an application under Order IX Rule 13 of the Code.

In the present case the Supreme Court held that when there is an express provision available under the Code or any statute under which an appeal is maintainable, by passing the same, a revision petition cannot be filed.  In the absence of an appellate remedy a revision petition may be maintainable. 

In this regard the respondent submitted before the Supreme Court to allow him to file an appeal and the same to be treated filed within the limitation period.  The Supreme Court accepted the request of the respondent.  The Supreme Court set aside the impugned order and liberty is given to the first respondent to file an appeal under Order XLII Rule 1(d) of the Code.  If such an appeal is filed before the High Court the point of limitation might not be arised by the High Court.