Dismissal of Limitation Act Section 5 petitions is revisable, not appealable; no merger with Order IX Rule 13 CPC orders.

ORDER :

K. Murali Shankar, J.

These Civil Miscellaneous Appeals are directed against the orders passed by the Courts below dismissing (i) the petitions filed under Section 5 of the Indian Limitation Act seeking condonation of delay in filing applications for setting aside the exparte decree under Order IX Rule 13 C.P.C. for restoring the suit which was dismissed for default under Order IX Rule 9 C.P.C., and (ii) the petitions filed under Section 5 of the Limitation Act to condone the delay in preferring the appeals.

2. Except the appellants in C.M.A.(MD)Nos.332 of 2026 and 361 of 2026, the appellants in other appeals originally filed the Civil Revision Petitions challenging the dismissal of the petitions filed under Section 5 of the Limitation Act.

3. The learned Counsel for the appellants would submit that this Court, relying upon the decision of the Hon'ble Supreme Court in the Koushik Mutually Aided Co-operative Housing Society Vs. Ameena and another ( 2023 INSC 1065 ) had observed that the Civil Revision Petitions were not maintainable and on that basis directed the Registry to re-register the Civil Revision Petitions as Civil Miscellaneous Appeals and in pursuance of the said directions, the Civil Revision Petitions came to be converted into Civil Miscellaneous Appeals. They would further contend that an order dismissing the petition filed under Section 5 of the Limitation Act is not an appealable order and that an appeal would lie only against the dismissal or rejection of a petition filed under Order IX Rule 13 C.P.C., or under Order IX Rule 9 C.P.C., and that there is no merger of the order dismissing the petition filed under Section 5 of the Limitation Act with any consequential order of rejection in the petition filed under Order IX Rule 13 C.P.C., or under Order IX Rule 9 C.P.C.

4. The learned Counsel would place reliance on the decision of the Hon'ble Supreme Court in C.Prabhakar Rao and another Vs. Sama Mahipal Reddy and another reported in 2025 SCC Online 495. In the said case, the plaintiffs had obtained an exparte decree in a suit for specific performance, based on an agreement for sale. The defendants thereafter filed an application for setting aside the exparte decree along with a petition under Section 5 of the Limitation Act to condone the delay in filing such application for setting aside the exparte decree. The trial Court declined to condone the delay and consequently dismissed the application filed under Order IX Rule 13 C.P.C., for setting aside the exparte decree. The defendants filed a revision challenging the order refusing to condone the delay and the High Court, while condoning the delay, proceeded to set aside the exparte decree and restored the suit for further hearing. When that order was challenged, the Hon'ble Apex Court has dealt with the scope of the petition filed under Section 5 of the Limitation Act to condone the delay vis-a-vis the application for setting aside the exparte decrees and the relevant passage is extracted hereunder:

“11. To start with, facts and events relating to passing of an ex-parte decree are distinct from the facts and events relating to the delayed filing of the application for setting aside of the ex-parte decree. Secondly, the procedure for setting aside the ex-parte decree will again be distinct from the procedure for condoning the delayed filing of the application to set aside the ex-parte decree. Thirdly, the adjudication and determination of a court with respect to setting aside the ex-parte decree are independent of the adjudication with respect to condoning the delay. Finally, the remedies against these orders a