Legality Of Order Setting Defendant Ex Parte Can Be Challenged In Appeal Even Without Filing Application Under Order IX Rule 13 CPC: Supreme Court

The Supreme Court observed that while challenging ex parte decree by filing an appeal, the defendant (who had not filed application under Order IX Rule 13 CPC ) can argue that ex parte proceedings against him was unjustified.

It is only when the application made by a defendant under Rule 13 of Order IX of CPC is dismissed that such a defendant cannot agitate in the appeal against ex parte decree that the order directing that the suit shall proceed ex parte was illegal or incorrect, the bench comprising Justices Ajay Rastogi and Abhay S. Oka observed.

In this case, the appellant- defendant contention through Advocate Anand Sanjay M. Nuli was that the the High Court (which confirmed the ex parte decree) proceeded on erroneous basis that the issue regarding the failure to serve the suit summons can be agitated only in an application filed for setting aside ex parte decree by invoking Rule 13 of Order IX of CPC. It was further contended that on the basis of the record of the suit, the appellant could always point out that the service of summons was not effected or that it was otherwise illegal to proceed ex parte against him. Advocate Arvind Kamath, who appeared for the respondents, contended that in an appeal against an ex parte decree, the appellant­- defendant can challenge the decree only on merits. If he wants to challenge the decree either on the ground that summons was not duly served to him or that he was prevented by sufficient cause from appearing in the suit, his remedy is to apply under Rule 13 of Order IX of CPC, it was contended relying on Bhanu Kumar Jain v. Archana Kumar & Anr (2005) 1 SCC 787.

The bench noticed that in Bhanu Kumar Jain it was held that when application under Rule 13 of Order IX of CPC filed by a defendant is dismissed, the defendant cannot be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing and/or existence of a sufficient cause for non-­appearance of the defendant. Distinguishing the said judgment, the bench observed:

"In this case, the question is when the defendant did not avail the remedy under Rule 13 of Order IX of CPC, whether it is open for him to agitate in the regular appeal against the decree that the trial court had no justification for proceeding ex parte against the appellant. In such a case, though the appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before the trial court, he can always argue on the basis of the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in proceeding ex parte against him. The reason is that under Section 105 of CPC, when a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case can be set forth as a ground of objection in the Memorandum of Appeal. Thus, in such a case, the appellant can always urge in an appeal against the decree that an interim or interlocutory order passed during the pendency of the suit affecting the decision of the case was illegal. Therefore, the appellant, while challenging ex parte decree by filing an appeal, can always point out from the record of the trial court that the order passed to proceed with the suit ex parte against him was illegal. As held in the case of Bhanu Kumar Jain , only when the application made by a defendant under Rule 13 of Order IX of CPC is dismissed that  such a defendant cannot agitate in the appeal against ex parte decree that the order directing that the suit shall proceed ex parte was illegal or incorrect. However, in this case, the appellant has not filed application under Rule 13 of Order IX of CPC."

The court noticed that in this case without verifying whether the address of the defendant, as shown in the cause title of the suit was correct, summons was ordered to be served through Registered Post AD. Thus there was no warrant for proceeding ex parte against the appellant-defendant, the court observed while allowing the apeal.

Case details

 G.N.R. Babu @ S.N. Babu vs Dr. B.C. Muthappa | 2022 LiveLaw (SC) 748 | 6 September 2022 | CA 6228 OF 2022 | Justices Ajay Rastogi and Abhay S. Oka

Headnotes

Code of Civil Procedure, 1908 ; Section 96, 105 and Order IX Rule 13 - The appellant, while challenging ex parte decree by filing an appeal, can always point out from the record of the trial court that the order passed to proceed with the suit ex parte against him was illegal - Only when the application made by a defendant under Rule 13 of Order IX of CPC is dismissed that such a defendant cannot agitate in the appeal against ex parte decree that the order directing that the suit shall proceed ex parte was illegal or incorrect -  Though the appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before the trial court, he can always argue on the basis of the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in proceeding ex parte against him.  (Para 8) 

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