IMPORTANT POINT
Setting aside ex-parte decree – Filing of application under Order IX Rule 13 CPC as well as filing of appeal under Section 96(2) of CPC against ex-parte decree are concurrent remedies available to a defendant – However, once appeal preferred by defendant against ex-parte decree is dismissed, except when it is withdrawn, remedy under Order IX Rule 13 CPC cannot be pursued – Conversely, if an application filed under Order IX Rule 13 CPC is rejected, appeal as against ex-parte decree can be preferred and continued under Section 96(2) of CPC.

ORDER :

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, City Civil Court, Hyderabad seeking a decree of specific performance of an agreement to sell dated 26.04.1985. In the said 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 Order 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. 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 is extracted as under in juxtaposition to Section 115 of the C