2024 (2) TMI 3 - SC - Indian Laws

Maintainability of Revision Petition before the High Court when the petitioner has alternate remedies as per the - an ex-parte decree was passed against the respondent - Trial court refused to condone the delay - High Court, in a revision petition, 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. HELD 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 CPC 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) of the CPC and the third, is by way of review before the same court against the ex-parte decree. 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 However, once the appeal preferred by the defendant against the ex-parte decree is dismissed, except when it is withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued.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. 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. 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 is needless to observe that in the absence of an appellate remedy, a revision may be maintainable. The impugned order set aside 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 - appeal allowed.

Summary

Issues:
The issues involved in this legal judgment are the maintainability of a Civil Revision Petition under Section 115 of the CPC against an order passed by the Trial Court dismissing an application seeking condonation of delay in filing a petition under Order IX Rule 13 CPC.

Summary:
The appellant filed a suit seeking specific performance of an agreement, resulting in an ex-parte decree. The first respondent later sought to set aside the ex-parte decree with a delay of 5767 days. The Trial Court dismissed the application for condonation of delay, leading to the dismissal of the petition to set aside the decree. The High Court, through a Civil Revision Petition, allowed the setting aside of the ex-parte decree and condoned the delay. However, the Supreme Court found the Civil Revision Petition to be not maintainable under Section 115 of the CPC.

Key Details:
The Supreme Court noted that an appeal under Order XLIII Rule 1(d) CPC should have been filed against the rejection of the petition under Order IX Rule 13 CPC, instead of a Civil Revision Petition under Section 115 of the CPC.

The Court highlighted that against an ex-parte decree, a defendant has three remedies: filing an application under Order IX Rule 13 CPC, filing an appeal under Section 96(2) of the CPC, or seeking a review before the same court.

The judgment referenced the case of Bhanu Kumar Jain vs. Archana Kumar, emphasizing that an appeal is maintainable against the rejection of an application under Order IX Rule 13 CPC.

The Supreme Court clarified that when an application under Order IX Rule 13 CPC is dismissed, the defendant can appeal under Order XLIII Rule 1 CPC, making a Civil Revision Petition under Section 115 of the CPC not appropriate.

The Court reserved liberty for the first respondent to file an appeal under Order XLIII Rule 1(d) CPC within a specified timeframe, with a direction for the High Court to dispose of the appeal in accordance with the law.

Conclusion:
The Supreme Court allowed the appeal, setting aside the impugned order passed in the Civil Revision Petition, and reserved liberty for the first respondent to file an appeal under Order XLIII Rule 1(d) CPC. The High Court was directed to address the appeal in accordance with the law, leaving all contentions open for both parties.