1. Intra-court reference on conflict regarding limitation period for application under Order IX Rule 7 CPC. (Para 1 , 2 , 3 , 7 )
Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Soumen Sen, CJ, Sathish Ninan, J, Easwaran S., J
Devaki – Appellant
Versus
Chandrika Ayyappan – Respondent
ICR (OP(C)) NO. 7 OF 2026 | OP (Civil) Nos.519 and 972 of 2024
1. Intra-court reference on conflict regarding limitation period for application under Order IX Rule 7 CPC. (Para 1 , 2 , 3 , 7 )
2. One view held Article 137 Limitation Act applies; other view held no limitation applies to Order IX Rule 7 application. (Para 1 , 7 )
3. Order IX Rule 7 does not require setting aside an order; it enables participation at adjourned hearing upon showing good cause. (Para 8 , 9 , 10 , 11 , 12 , 13 , 26 , 27 , 28 , 29 , 30 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 47 )
4. An application under Order IX Rule 7 CPC is not subject to any period of limitation under the Limitation Act, 1963. (Para 47 , 49 )
5. Intra-court reference disposed of; Order IX Rule 7 application not governed by Article 137 of Limitation Act. (Para 49 , 50 )
The application is not subject to any period of limitation prescribed under the Limitation Act, 1963. (Para 47 , 49 )
No, Article 137 does not apply to an application under Order IX Rule 7 CPC. (Para 47 , 49 )
Rule 7 enables participation at an adjourned hearing without setting aside any order, while Rule 13 specifically provides for setting aside an ex parte decree. (Para 8 , 9 , 26 )
Yes, a defendant can participate in subsequent proceedings without an application if they agree to be bound by past proceedings. (Para 18 , 19 , 22 )
The application can be filed at any stage before the hearing of the suit is concluded and the matter is reserved for judgment. (Para 12 , 36 )
JUDGMENT
Dated this the 23rd day of September, 2026.
Soumen Sen, C.J.
1. This Intra Court Reference arose from an order of the learned Single Judge dated 20th February, 2025, in OP (Civil) Nos.519 and 972 of 2024, in view of two conflicting findings of different Benches of this Court regarding the period of limitation for filing an application under Order IX Rule 7 of the Code of Civil Procedure, 1908 (“CPC”, for brevity). In C.L. Cleetus v. The South Indian Bank Ltd., 2007 (3) KHC 911 it was held that Article 137 of the Limitation Act, 1963 (“Limitation Act”, for brevity) applies and that such an application is governed by a limitation period of three years. The said view was followed by the Division Bench in Y. Daniel v. Annama ,
2. Ordinarily a Single Judge is bound by the decision of the Division Bench. However, when a Single Judge doubts the correctness of the opinion of the Larger Bench, the appropriate remedy is to place the matter before the Chief Justice for appropriate orders and for deciding the issue by constituting a Larger Bench in view of the decisions of the Hon’ble Supreme Court in the cases of Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 and Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1.
3. The issues that came up for consideration before us in this intra court reference are as follows:-
I. Whether an application filed under Order IX Rule 7 of the Code of Civil Procedure to set aside an ex-parte order is subject to any limitation period?
II. Whether Article 137 of the Limitation Act applies to an application under Order IX Rule 7 of the Code of Civil Procedure?
4. Before answering the aforesaid issues, it would be appropriate to refer to some of the relevant provisions in Order IX of the CPC which deal with “Appearance of parties and consequence of non-appearance”.
5. Order IX Rule 7 CPC deals with the procedure where the defendant appears on the day of the adjourned hearing and assigns good cause for previous non-appearance. It reads as follows:
“7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.—Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.”
(emphasis supplied)
6. Whereas, the procedure dealing with setting aside an ex parte decree comes under Order IX Rule 13 of the CPC and it reads as follows:
“13. Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
Explanation.—Where there has been an appeal against a decree passed ex parte under this rule, and the
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top