The Koushik Mutually Aided Cooperative Housing Society vs Ameena Begum & Another

2023 INSC 1065 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2023 (@ SPECIAL LEAVE PETITION (C) NO.5489 OF 2021)

THE KOUSHIK MUTUALLY AIDED COOPERATIVE HOUSING SOCIETY ...APPELLANT(S)

VERSUS

AMEENA BEGUM & ANOTHER ...RESPONDENT(S)

O R D E R

1. 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 and perused the material on record. The second

respondent has been deleted from the array of parties in terms of

this Court’s Order dated 25.04.2023.

4. Briefly stated, the facts are that the appellant herein had

filed O.S. No.1144/1988 on the file of the V-Senior Civil Judge, Signature Not Verified

City Digitally signed by Neetu Sachdeva Date: 2023.12.12 Civil Court, Hyderabad seeking a decree of specific 17:16:05 IST Reason:

performance of an agreement to sell dated 26.04.1985. In the said

1 suit, the respondent(s) herein were set ex-parte. Thereafter, an

ex-parte decree was passed on 15.02.1999. It is stated that

execution proceedings as against the ex-parte decree are still

pending before the Executing Court. However, the first respondent

herein filed an application on 07.01.2016 seeking setting aside of

ex-parte decree dated 15.02.1999 along with an application under

Section 5 of the Limitation Act, 1963 seeking condonation of 5767

days delay in filing the said application seeking setting aside of

ex-parte decree.

5. By order dated 07.06.2018, the V-Senior Civil Judge, City

Civil Court, Hyderabad dismissed I.A. No.30/2016 filed for seeking

condonation of delay of 5767 days in filing the application seeking

setting aside of the ex-parte decree under Oder IX Rule 13 Code of

Civil Procedure, 1908 (‘CPC’ for the sake of convenience). The said

application was considered by the Trial Court and by order dated

07.06.2018, the application seeking condonation of delay was

dismissed. Consequently, the petition filed under Order IX Rule 13

CPC seeking setting aside of the ex-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.

2 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

Rule 13 CPC seeking setting aside the ex-parte decree dated

15.02.1999 by directing the Trial Court to dispose of the petition

filed under Order IX Rule 13 CPC and to complete the trial of the

suit expeditiously, within a period of four months from the date of

receipt of certified copy of this order.

8. Being aggrieved by the said order passed in Civil Revision

Petition by the High Court, the plaintiff/appellant has preferred

this appeal.

As noted above, we have heard learned senior counsel for the

respective parties and perused the material on record.

9. At the outset, this Court queried as to 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 also.

10. During the course of submissions, it was noted that, in fact,

the rejection of a petition filed under Order IX Rule 13 CPC is an

appealable order and, therefore under Order XLIII Rule 1(d) CPC, an

appeal ought to have been filed before the High Court rather than a

Civil Revision Petition under Section 115 of the CPC.

11. For the sake of immediate reference, Order XLIII Rule 1(d) CPC 3 is extracted as under in juxtaposition to Section 115 of the CPC:

“Order XLIII Rule 1. Appeal from orders – An appeal shall lie from the following orders under the provisions of section 104, namely:-

(a) xxx

(c) xxx

(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 reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.

Explanation.—In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.”

4

12. 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.

13. 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.

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 setting aside the order in terms of Order IX Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order IX Rule 13 of the Code a petition under Order IX Rule 13 would not be maintainable. However, the Explanation I appended to the 5 said provision does not suggest that the converse is also true.”

15. Against the order passed under Order IX Rule 13 CPC rejecting

an application for seeking setting aside the decree passed ex-

parte, an appeal is provided. 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.

16. Thus, 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.

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

6 observe that in the absence of an appellate remedy, a revision may

be maintainable.

18. It is clarified that once the Trial Court dismissed the

application seeking condonation of delay in filing petition under

Order IX Rule 13 CPC, and consequently, the main petition under

Order IX Rule 13 CPC also stood dismissed which is also noted by

the trial Court as “In the result, the petition is dismissed”.

19. Realising this aspect regarding the maintainability of a

revision petition before the High Court, Sri Sajan Poovayya,

learned senior counsel submitted that liberty may be reserved to

the first respondent herein to file an appeal and if such an

appeal is filed within a time frame to be granted by this Court,

the issue of limitation in filing the appeal under Order XLIII Rule

1(d) CPC may not be raised by the High Court

By way of response, Sri C. S. Vaidyanathan, learned senior

counsel submitted that if the impugned order is set aside and

liberty is reserved to the first respondent herein, the appellant

may not be prejudiced by such an order.

20. In the circumstances, we set aside the impugned order 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.

21. If such an appeal is filed before the High Court, the point of

limitation ought not to be raised by the High Court.

7

22. It is needless to observe that the High Court shall dispose of

the appeal to be filed by the first respondent herein in accordance

with law.

23. All contentions on both sides are left open, to be advanced in

the appeal to be filed before the High Court.

24. This Appeal is allowed and disposed of in the aforesaid terms.

No costs.

Pending application (s) shall stand disposed of.

……………………………………………………J. [B.V. NAGARATHNA]

……………………………………………………J. [UJJAL BHUYAN] NEW DELHI;

DECEMBER 01, 2023.

8