IMPORTANT POINTS
A litigant has two remedies against ex parte decree - either to file application for setting aside the same and/or file first appeal. While first appeal can be filed even after dismissal of application under order IX Rule 13, vice versa does not hold good.
If a litigant shows his bona fide, his delay in filing first appeal can be condoned.

JUDGMENT :

R. BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of the impugned order dated 24.04.2018 passed by the High Court of Madras at Madurai Bench in CMP(MD) No.6566 of 2017 in AS(MD) SR No. 27805 of 2017 in and by which the High Court has refused to condone the delay of 546 days in filing the first appeal against the judgment and decree passed in OS No.76 of 2015 dated 09.10.2015.

3. Brief facts which led to filing of this appeal are as follows:-

The appellant-defendant is a businessman doing business of tea and real estate. Case of the respondent-plaintiff is that on 10.01.2015, the appellant approached the respondent-plaintiff for financial assistance for a sum of Rs.45,00,000/-for the purpose of his business needs. The respondent lent him the sum of Rs.45,00,000/-and there was no documentation for the same. According to the respondent, it was agreed that the said amount will be returned to the respondent with an interest of 18% per annum. The appellant agreed to return the said amount within two months; but the appellant has not paid the amount. On the other hand, the appellant is said to have issued two post-dated cheques to the respondent, one for an amount of Rs.25,00,000/-and another for an amount of Rs.20,00,000/-. When the said cheques were presented for collection on 10.03.2015, the same were returned with the endorsement that “payments stopped by the drawer”. The respondent-plaintiff filed a civil suit being OS No.76 of 2015 before the Additional District Judge, Tiruchirappalli. The said suit was decreed ex-parte on 09.10.2015.

4. Order IX Rule 13 CPC Proceedings:- The appellant-defendant filed IA No.327 of 2016 in OS No.76 of 2015 under Section 5 of the Limitation Act to condone the delay of 276 days in filing the petition under Order IX Rule 13 CPC to set aside the ex-parte decree. In the said application, the appellant has stated that summons was sent to the appellant’s old address at Trichy and the same was returned unserved and the ex-parte decree was passed on 09.10.2015. It was averred in the said application that the appellant is residing in Chennai since January, 2014. The appellant has alleged that when he went to attend a case in CC No.240/2016 at Karur Court on 29.07.2016, he came to know about the passing of the ex-parte decree in OS No.76 of 2015. Thereafter, the appellant has taken steps to set aside the ex-parte decree and filed application under Section 5 of the Limitation Act -IA No.327 of 2016 to condone the delay of 276 days in filing the petition under Order IX Rule 13 CPC to set aside the ex-parte decree. The said petition was dismissed by the Additional District Judge by order dated 04.01.2017. The appellant has challenged the said order by filing revision being CRP (MD) No.257 of 2017 (NPD) before the High Court. Rejecting the contention of the appellant that he has been residing in Chennai, the learned Single Judge dismissed the said revision being CRP (MD) No.257 of 2017 (NPD) by order dated 08.02.2017. The SLP(C) No.9829 of 2017 preferred against the said order also came to be dismissed by the Supreme Court by order dated 07.04.2017.

5. First appeal filed by the appellant in AS(MD) SR No. 27805 of 2017:-After the dismissal of the SLP by the Supreme Court, the appellant-defendant has filed the first appeal being AS(MD) SR No. 27805 of 2017 challenging the decree passed in OS No.76 of 2015 dated 09.10.2015 along with application being CMP(MD) No.6566 of 2017 praying to condone the delay of 546 days in filing the appeal. In the said application, the appellant raised the very same grounds that he is having residence at Chennai and that the summons was not served on him and that summons was taken to Trichy’s address and thereafter, ex-parte decree was passed against him on 09.10.2015 and hence, prayed for condonation of delay. The High Court dismissed the application for condonation of delay on the ground that in the earlier proceedings under Order IX Rule 13 CPC, the appellant has