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TMI Blog2024 (2) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 However, once the appeal preferred by the defendant against the ex-parte decree is dismissed, except when it is withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued.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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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. - B.V. NAGARATHNA AND UJJAL BHUYAN, JJ. For the Petitioner : B. Shravanth Shanker ORDER Leave granted. 2. Being aggrieved by order dated 08.01.2021 passed by the learned Single Judge of the High Court for the State of Telangana at Hyderabad in Civil Revision Petition No. 4866/2018, this appeal has been preferred. 3. We have heard Sri C. S. Vaidyanathan, learned senior counsel along with Sri Gopal Sankaranarayanan, learned senior counsel for the appellant and Sri Sajan Poovayya, learned senior counsel for the first respondent an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x-parte decree also stood dismissed. 6. 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. 7. 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 Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex-parte. Section 115 Revision. (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or revers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. In Bhanu Kumar Jain vs. Archana Kumar, AIR 2005 SC 626 : (2005) 1 SCC 787, speaking through Sinha, J. observed in paragraph 26 as under: When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 17. 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. 18. It is clarified that once the Trial Court dismissed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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