Once an ex-parte decree is merged with an appellate decree, an application under Order 9 Rule 13 CPC is not maintainable as per legislative intent.

ORDER :

1. An order dated 13.03.2024 passed by 3^rd Civil Judge Class-II, Ambikapur, District Surguja, Chhattisgarh in Miscellaneous Civil Suit No. 31/2017 is under challenge in this petition filed under Article 227 of the Constitution of India. By the impugned order, the learned Civil Judge allowed an application filed by respondents No. 1 & 2 under Order 9 Rule 13 of the Civil Procedure Code, 1908 (for short “CPC”) read with Section 5 of Limitation Act, 1963 (for short” Act of 1963”). Consequently, the judgment and decree dated 08.01.2008, passed in Civil Suit No.63 A/ 2005 has been set aside.

2. Learned counsel for the petitioner submits that the petitioner/ plaintiff had filed a civil suit before the learned Civil Judge against one Sairam and others which was registered as Civil Suit No.63 A/ 2005 seeking a declaration of title, possession and permanent injunction regarding properties detailed in the plaint. Respondents No.1 & 2 are the legal heirs of Late Sairam, who was original defendant No.1 in the civil suit. Sairam passed away after the passing of the decree. While the suit was pending before the learned Civil Judge, the petitioner/ plaintiff entered into a compromise with Sairam and her statement was duly recorded. However, Sairam subsequently ceased appearing before the Court and was proceeded against ex-parte. As the proposed compromise failed to materialize, the learned Civil Judge proceeded with the suit on its merits. Vide judgment and decree dated 08.01.2008, the suit of the petitioner/ plaintiff was allowed. A decree of declaration of title in respect of the properties mentioned in Schedule C and Schedule D was granted in her favour. Furthermore, the respondents/ defendants were restrained from interfering with the possession of the said properties. The aforementioned judgment and decree were challenged by other defendants before the 4^th Additional District Judge, Ambikapur, and the appeal was registered as Civil Appeal No. 98 A/ 2011. The late Sairam was also arrayed as a respondent in the said appeal. The judgment and decree passed by learned Civil Judge were affirmed by 4^th Additional District Judge, who dismissed the appeal vide judgment and decree dated 16.03.2016. Subsequently, the legal heirs of Sairam filed an application under Order 9 Rule 13 of CPC for setting aside the ex-parte decree dated 08.01.2008, along with an application under Section 5 of Act of 1963. The learned Civil Judge, vide the impugned order, allowed the application holding that although the application was filed belatedly, sufficient cause was shown by respondent No.1 and 2; thus the application for condonation of delay was allowed. The Court further observed that respondents No. 1 & 2 had sufficient reason for their non-appearance in the civil suit. Consequently, the decree dated 08.01.2008 was set aside. He further submits that admittedly, the ex-parte decree which respondents No. 1 & 2 sought to set aside had already been affirmed by the appellate Court in the aforementioned appeal. Consequently, the decree is now a decree of the appellate Court. As per the explanation to Order 9 Rule 13 of the CPC, such an application is not maintainable once an appeal against the decree has been disposed of on any ground other than withdrawal. Furthermore, it is submitted that while the decree was passed in the year 2008, the application for setting it aside was only filed in the year 2017. There was no sufficient explanation provided for this delay. During the examination of respondents No. 1 & 2 before the learned Civil Judge, they admitted that Sairam was appearing in the civil suit. Consequently, the finding record