Devaki vs Chandrika Ayyappan - 2026 Supreme(Online)(Ker) 62427

Headnote:(A) Code of Civil Procedure, 1908 - Order IX Rule 7 - Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance - Limitation Act, 1963 - Article 137 - Applicability of residuary limitation period to application for setting aside ex parte order - An application under Order IX Rule 7 is not intended to set aside an act of Court, but rather to enable a defendant, upon showing good cause for previous non-appearance, to participate in the proceedings from the stage at which they appear - Such proceedings are interlocutory in nature, designed to ensure the just, smooth, and orderly conduct of the suit, and do not finally determine any issue in controversy or put an end to the litigation (Paras 9, 28, 34).

(B) Order IX Rule 7 vs Order IX Rule 13 - Distinction between setting aside an ex parte order and an ex parte decree - Rule 13 provides a specific remedy for setting aside a final decree with a prescribed limitation period - Conversely, Rule 7 allows a defendant to be heard in answer to the suit as if they had appeared on the date fixed - Applying a three-year limitation under Article 137 would create an anomaly where a defendant might be barred from seeking relief under Rule 7 while still being eligible to set aside a final ex parte decree under Rule 13 (Paras 9, 44).

(C) Stage of Proceedings - The right to invoke Order IX Rule 7 is governed by the stage of the suit rather than a fixed timeframe - The provision is available only as long as the hearing of the suit has not concluded and the matter has not been reserved for judgment - Therefore, the exercise of this right is controlled by the progress of the proceedings, and importing a limitation period would introduce a restriction not contemplated by the statutory scheme (Paras 12, 36).

Facts of the case:
An intra court reference was initiated to resolve conflicting findings of different benches regarding whether a specific limitation period applies to applications filed under Order IX Rule 7 of the Code of Civil Procedure. The issue centered on whether such applications, aimed at setting aside an order to proceed ex parte, are governed by the residuary Article 137 of the Limitation Act, which prescribes a three-year period.

Findings of Court:
The court found that an order to proceed ex parte is a formal procedural order and not a final adjudication of rights. It concluded that Rule 7 does not contemplate the

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1. Intra-court reference on limitation for setting aside ex-parte order under Order IX Rule 7 CPC. (Para 1 , 2 , 3 , 7 )

2. Petitioner argued no limitation; respondent argued Article 137 applies, requiring three years. (Para 7 )

3. Rule 7 does not set aside an order but allows participation; limitation law does not apply. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 )

4. An application under Order IX Rule 7 CPC is not governed by Article 137 of the Limitation Act. (Para 47 , 48 , 49 )

5. Intra-court reference disposed; OPs placed before appropriate bench. Answered: no limitation applies. (Para 49 , 50 )

6. Is an application under Order IX Rule 7 CPC subject to any period of limitation?

No. Such an application is not subject to any period of limitation prescribed under the Limitation Act, 1963. (Para 49 )

7. Does Article 137 of the Limitation Act apply to an application under Order IX Rule 7 CPC?

No. Article 137 does not apply to an application under Order IX Rule 7 CPC. (Para 47 , 48 , 49 )

8. What is the distinction between Order IX Rule 7 and Order IX Rule 13 CPC regarding limitation?

Rule 13 sets aside an ex-parte decree with a prescribed limitation period; Rule 7 enables participation without needing to set aside any order, and no limitation applies. (Para 8 , 9 , 26 , 27 )

JUDGMENT

Dated this the 23^rd day of September, 2026.

Soumen Sen, C.J.

1. This Intra Court Reference arose from an order of the learned Single Judge dated 20^th 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 , Judgement dated 15thMarch 2012 in O.P(FC) No.10 of 2012 without independently considering whether it prescribes any period of limitation for an application under Order IX Rule 7 CPC.

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 th

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2026 Supreme(Online)(Ker) 62427

SUPREME COURT OF INDIA
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

An application under Order IX Rule 7 of the Code of Civil Procedure to set aside an ex parte order is not subject to any limitation period, and the residuary Article 137 of the Limitation Act, 1963 does not apply to such proceedings.

Legal Category Hierarchy

Table of Contents

6. Is an application under Order IX Rule 7 CPC subject to any period of limitation?

7. Does Article 137 of the Limitation Act apply to an application under Order IX Rule 7 CPC?

8. What is the distinction between Order IX Rule 7 and Order IX Rule 13 CPC regarding limitation?

2026 Supreme(Online)(Ker) 62427

SUPREME COURT OF INDIASoumen Sen, CJ, Sathish Ninan, J, Easwaran S., JDevaki – AppellantVersusChandrika Ayyappan – RespondentICR (OP(C)) NO. 7 OF 2026|OP (Civil) Nos.519 and 972 of 2024

An application under Order IX Rule 7 of the Code of Civil Procedure to set aside an ex parte order is not subject to any limitation period, and the residuary Article 137 of the Limitation Act, 1963 does not apply to such proceedings.

Legal Category Hierarchy

Table of Contents

6. Is an application under Order IX Rule 7 CPC subject to any period of limitation?

7. Does Article 137 of the Limitation Act apply to an application under Order IX Rule 7 CPC?

8. What is the distinction between Order IX Rule 7 and Order IX Rule 13 CPC regarding limitation?

Cases Referred (4)

SUPREME COURT OF INDIA
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