Revision Petition Under S.115 CPC Not Maintainable Against Refusal To Set Aside Ex-Parte Decree Under Order IX Rule 13 : Supreme Court

The Supreme Court recently held that a Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) is not maintainable against the dismissal of an application field under Order IX Rule 13 of the CPC to set aside an ex-parte decree

“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 bench of Justice BV Nagarathna and Justice Ujjal Bhuyan stated.

In the case at hand, the Appellant filed a suit seeking a decree of specific performance of an agreement to sell. An ex-parte decree was passed by the Civil Court. Later, the 1st Respondent filed an application under Order IX Rule 13 of the CPC for setting aside the ex-parte decree along with an application for condonation of delay. This came to be dismissed by the court.

Subsequently, the first respondent filed a Civil Revision Petition under Section 115 of the CPC before the High Court. The High Court set aside the order of the lower court which also implies that the petition filed under Order IX Rule 13 CPC which had also stood dismissed was allowed by the High Court.

The Court delved into the question of how a Civil Revision Petition was maintainable against an order passed by the Trial Court dismissing the application filed seeking condonation of delay in filing the petition under Order IX Rule 13 CPC and consequently rejecting or dismissing the said petition too.

“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” the Court observed.

As against the ex-parte decree, a defendant has three remedies available, the Apex Court highlighted. 1) By way of filing an application under Order IX Rule 13 CPC seeking for setting aside ex-parte decree; 2) By way of filing an appeal against the ex-parte decree under Section 96(2) of the CPC and 3) By way of review before the same court against the ex-parte decree.

There is an option of appeal against the order passed under Order IX Rule 13 CPC rejecting an application for seeking setting aside the decree passed ex-parte ,the Apex Court observed.

“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. 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 Court observed.

In view of the appellate remedy under Order XLIII Rule 1(d) of the CPC being available to the Appellant, the revision under Section 115 of the CPC filed was not maintainable, the Apex Court concluded.

Sr. Adv. C. S. Vaidyanathan and Sr. Adv. Gopal Sankaranarayanan appeared for the Appellant.

Sr. Adv. Sajan Poovayya appeared for the 1st Respondent.

Case Title: Koushik Mutually Aided Cooperative Housing Society V. Ameena Begum, Special Leave Petition (C) No.5489 Of 2021

Citation:  2023 LiveLaw (SC) 1056

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