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2026 Supreme(Online)(Kar) 23532

THE HIGH COURT OF KARNATAKA
Vijaykumar A. Patil, J
V. Ramachandra – Appellant
Versus
M.L. Jayarajegowda – Respondent
W.P. No.24322/2022

Advocates:
For the Appellants/Petitioners: Siddharth Padmaraj Desai
For the Respondents: Bhuvan K.P.

An application under Order IX Rule 4 of the Code of Civil Procedure is not maintainable to challenge the dismissal of an application filed under Order IX Rule 13; furthermore, inordinate delay cannot be condoned on equitable grounds without sufficient cause and bona fide explanation.

Headnote:(A) Limitation Act, 1963 - Section 5 - Condonation of delay - Inordinate delay - Discretion of Court - Setting aside ex parte decree - Respondent filed miscellaneous petition under O. 9 R. 13 of CPC with delay of 3 years, which was dismissed for default - Subsequent petition under O. 9 R. 4 of CPC filed after 7½ years to restore original petition - Trial Court allowed the same on grounds of equity in immovable property matter - Held, improper - Law of limitation is based on public policy and statutes of peace; cannot be extended on equitable grounds when negligence or lack of bona fide is apparent - Liberal approach to condonation of delay cannot be used to defeat substantial law of limitation - Impugned order restored proceedings after 7 years of delay without sufficient cause, causing prejudice to settled rights of petitioner - Order set aside. (Paras 9, 10, 11)

(B) Civil Procedure Code, 1908 - Order 9 Rule 13, Order 43 Rule 1(d) - Remedy against ex parte decree - Specific remedy to challenge order passed under O. 9 R. 13 is an appeal under O. 43 R. 1(d) - Application under O. 9 R. 4 of CPC to restore a dismissed application under O. 9 R. 13 is not maintainable. (Para 8)

Facts of the case:
The petitioner had obtained an ex parte decree for specific performance in 2008. The respondent filed a petition under O. 9 R. 13 in 2011 to set aside the decree, which was dismissed for non-prosecution in 2012. In 2020, the respondent filed a petition under O. 9 R. 4 to restore the dismissed petition, which the trial court allowed, leading to the current challenge.

Findings of Court:
The High Court observed that the trial court erred in allowing the restoration petition after seven years of inordinate, unexplained delay. Furthermore, it noted the legal position that the appropriate remedy for an order under O. 9 R. 13 is an appeal, not a fresh miscellaneous application under O. 9 R. 4.

Issues: Whether the trial court was justified in condoning an inordinate delay of over seven years and whether an application under Order 9 Rule 4 of the Code of Civil Procedure is maintainable against an order dismissing an application under Order 9 Rule 13.

Ratio Decidendi: The court established that limitation statutes must be applied with all their rigour and the power to condone delay cannot be exercised on sympathetic grounds where there is negligence or lack of bona fides; additionally, a specific statutory remedy by way of appeal under O. 43 R. 1(d) precludes the filing of an inappropriate O. 9 R. 4 application.

Result: The writ petition was allowed and the trial court's order was set aside.

Table of Content
1. overview of factual background and procedural history (Para 1 , 5 , 6 , 7)
2. contentions regarding maintainability and delay (Para 2 , 3)
3. legal principles of limitation and procedural maintainability (Para 8 , 9 , 10 , 11 , 12)
4. final order and disposition (Para 13)

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN MISC.NO.7 OF 2020 AND ALSO IN MISC.NO.19 OF 2011, ON THE FILES OF THE HONBLE II ADDITIONAL SENIOR CIVIL JUDGE, AND CJM, MYSURU. QUASH/SET ASIDE THE ORDER DTD 21.09.2022 PASSED IN MISC.NO.7/2020 ON THE FILE OF THE HONBLE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU ANNEXURE-A & ETC.

THIS PETITION HAVING BEEN HEARD AND RESERVED ON 16.04.2026, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

CAV JUDGMENT

This writ petition is filed challenging the order dated 21.09.2022 passed in Misc.P.No.7/2020 by the II Additional Senior Civil Judge and CJM, Mysuru (for short, 'the Trial Court').

2. Sri.Siddharth P.Desai, learned counsel appearing for the petitioner makes the following submissions:

(a) The petitioner has filed a suit for specific performance which came to be decreed ex parte on 20.12.2008.

(b) The petitioner has filed Ex.P.No.82/2010 to execute the judgment and decree in O.S.No.220/2007.

(c) The respondent-defendant filed miscellaneous petition under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, 'the CPC') in Misc.P.No.19/2011 on 21.02.2011 with a delay of nearly 3 years. The said miscellaneous petition was dismissed for non-prosecution on 03.07.2012.

(d) The respondent filed miscellaneous petition under Order IX Rule 4 of the CPC seeking to set aside the order dated 03.07.2012 passed in Misc.P.No.19/2011, after a period of 7½ years and the same was registered as Misc.P.No.7/2020.

(e) The Trial Court allowed the Misc.P.No.7/2020 under the impugned order dated 21.09.2022 without assigning any reasons for condoning the enormous delay. The petition under Order IX Rule 4 of the CPC is not maintainable. The remedy to challenge the order passed on Order IX Rule 13 of the CPC would be under Order XLIII(1)(d) of the CPC. In support of his contentions, he placed reliance on the following decisions:

(1) PATHAPATI SUBBA REDDY (DIED) BY LEGAL REPRESENTATIVES & OTHERS Vs. SPECIAL DEPUTY COLLECTOR (LA)¹(2024) 12 SCC 336

(2) H.GURUSWAMY AND OTHERS Vs. KRISHNAIAH SINCE DECEASED BY LRS.²2025 SCC Online SC 54

(3) THIRUNAGALINGAM Vs. LINGESWARAN³2025 SCC Online sc 1093

(4) MAJJI SANNEMMA ALIAS SANYASIRAO V.REDDY SRIDEVI AND OTHERS⁴2021 SCC Online SC 1260

(5) POPAY BAHIRU GOVARDHANE AND OTHERS Vs. SPECIAL LAND ACQUISITION OFFICER AND OTHERS⁵(2013) 10 SCC 765

3. Per contra, Sri.Bhuvan K.P, learned counsel for the respondent supports the impugned order of the Trial Court and makes the following submissions:

(a) The suit of the petitioner was decreed ex parte without service of summons.

(b) Clause 8 of the agreement of sale indicates that if the respondent failed to perform his part of contract, the remedy is to refund the advance amount with damages and not to enforce the contract. However, the Trial Court has not considered the same.

(c) The respondent has no knowledge about the filing of the suit. Only when the execution petition was filed by the petitioner, he came to know about the judgment and decree and hence, he filed miscellaneous petition which was dismissed for non-prosecution and not on merits. Hence, the miscellaneous petition under Order IX Rule 4 of the CPC is maintainable and only in the cases of disposal of the miscellaneous petition on merits, the appeal lies.

(d) The Trial Court, under the impugned order has assigned detailed reasons with regard to the health conditions of the respondent and allowed the miscellaneous petition by restoring Misc.P.No.19/2011 and the petitioner can contest the said proceedings on merits.

(e) The right of immovable property

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2026 Supreme(Online)(Kar) 23532

THE HIGH COURT OF KARNATAKAVijaykumar A. Patil, JV. Ramachandra – AppellantVersusM.L. Jayarajegowda – RespondentW.P. No.24322/2022

An application under Order IX Rule 4 of the Code of Civil Procedure is not maintainable to challenge the dismissal of an application filed under Order IX Rule 13; furthermore, inordinate delay cannot be condoned on equitable grounds without sufficient cause and bona fide explanation.

Cases Referred (2)

THE HIGH COURT OF KARNATAKA
Vijaykumar A. Patil, J
V. Ramachandra – Appellant
Versus
M.L. Jayarajegowda – Respondent
W.P. No.24322/2022