2025 Supreme(Online)(Mad) 71324

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Honourable Mr.Justice P.B. BALAJI
RANGANATHAN ALIAS RANGASAMY – Appellant
Versus
MOHANKUMAR – Respondent
CRP. Nos.3541 & 3564 of 2025 | O.S. No. 188 of 2008 | A.S. Nos. 591 and 592 of 2011 | O.S. No. 663 of 2010

Headnote:(A) Code of Civil Procedure, 1908 - Order IX Rule 13 - Article 227 of the Constitution of India - Maintainability of application to set aside ex-parte decree by one defendant when other defendants contested - Even if an ex-parte decree was passed against a defendant, he can still apply under Order IX Rule 13 CPC as long as the decree remains ex-parte qua him - However, the court must examine the conduct of the applicant, the delay, and whether the applicant has any subsisting interest - Doctrine of adequate representation - Where a defendant has sold his interest in the property to another party who contested the suit and appealed, the seller-defendant's interest is adequately represented - Supreme Court in Bank of India Vs. Mehta Brother (2009 1 L.W. 439) held that an ex-parte decree can be set aside only qua the applicant if the decree is severable - Reliance on Venkatalakshmi @ Rathnamma Vs. Bayamma (2003 (1) CTC 603), K.Dhamodharan Vs. Janakiraman (CRP.No.378 of 2017) and Kandasamy Vs. Govindammal (CRP(NPD).No.3067 of 2017). (Paras 15-17)

(B) Condonation of delay - When a fresh application for condonation of delay is filed years after the decree, the applicant cannot arbitrarily fix a shorter period of delay based on an earlier pending application - The actual delay must be explained - Mere filing of an earlier application that did not see the light of day does not freeze the delay. (Para 23)

Facts of the case:
The revision petitioner was the 3rd defendant in a partition suit (O.S.No.188 of 2008) filed by the respondent. He was set ex-parte and the suit was decreed on 24.01.2011 after trial with other defendants contesting. The decree was confirmed in appeal (A.S.Nos.591 & 592 of 2011) which were dismissed for non‑prosecution on 22.11.2019. The petitioner had filed applications in 2012 to set aside the ex-parte decree and condone delay of 316 days, but those were not taken on file. In 2025, he filed fresh applications stating the same delay of 316 days. The trial Court returned the applications as not maintainable. The High Court examined the maintainability and the conduct of the petitioner.

Findings of Court:
The trial Court’s view that the applications are not maintainable is legally incorrect in light of settled law; however, the revision petitions are dismissed on other grounds. The petitioner had sold his interest to the 13th defendant, who contested the suit and appealed. The petitioner’s interest was adequately represented. The petitioner failed to explain the actual delay of over 14 years and arbitrarily claimed only 316 days. No steps were taken to challenge the sale deed or to protect his rights when the appeals were dismissed. The conduct lacks bona fides.

Issues: (i) Whether an application under Order IX Rule 13 CPC is maintainable by a defendant who was set ex-parte when other defendants contested and a decree was passed on merits? (ii) Whether the delay of 316 years claimed is justified? (iii) Whether the petitioner has any subsisting right after selling the property to the 13th defendant?

Ratio Decidendi: Even though the application under Order IX Rule 13 CPC is maintainable in law, the petitioner is not entitled to relief because his conduct shows lack of diligence and bona fides; he had no subsisting interest as the property was already conveyed to a party who fully contested the suit and appeals; the delay was grossly understated and unexplained. Result : Civil Revision Petitions dismissed. No order as to costs. (Paras 24-25)", "main_legal_point": "Even where an ex-parte decree is passed against a defendant, he may apply under Order IX Rule 13 CPC despite other defendants contesting, but such application can be dismissed based on conduct, delay, and lack of subsisting interest.", "category": "Civil Procedure Code", "sub_category": "Ex-parte Decree - Setting Aside", "keywords": ["ex-parte decree", "condonation of delay", "maintainability", "conduct of party", "subsisting interest", "Order IX Rule 13", "revision petition", "docket order", "representation of interest", "delay explanation"] }