A defendant's right to contest a matter cannot be curtailed even in respect of further proceedings, even if they cannot show good cause for the delay in filing an application to set aside an ex parte order.

Headnote:
ORDER 9 RULE 7 CPC - EX PARTE ORDER - SETTING ASIDE - DELAY - CONDUCT OF PARTIES - SUPREME COURT INTERPRETATION
Fact of the Case:

Petitioner's application under Order 9 Rule 7 CPC to set aside ex parte order was rejected by the executing court on grounds of delay and conduct of parties. Petitioner had appeared through counsel on several dates after the ex parte order but filed the application only after a significant delay.
Finding of the Court:

The court held that the executing court erred in rejecting the application outright without considering the petitioner's right to contest the matter. The court relied on the Supreme Court's interpretation of Order 9 Rule 7 CPC, which allows a defendant to appear and show good cause for previous non-appearance even if they cannot show good cause for the delay.
Issues: Whether the executing court erred in rejecting the petitioner's application under Order 9 Rule 7 CPC to set aside the ex parte order on grounds of delay and conduct of parties.
Ratio Decidendi: The court held that the executing court should have allowed the petitioner to participate in the execution proceedings, subject to payment of costs, in light of the Supreme Court's interpretation of Order 9 Rule 7 CPC. The court noted that the petitioner had appeared through counsel on several dates after the ex parte order, indicating an intention to contest the matter.
Final Decision: The court set aside the impugned order and allowed the petitioner's application to set aside the ex parte order, subject to payment of costs. The executing court was directed to conclude the proceedings within six months.

ORDER

1] This miscellaneous petition filed under Article 227 of the Constitution of India by the petitioner/judgment debtor against the order dated 28.01.2023, passed in Execution Case No.72/2016 by the Additional Judge to Civil Judge Junior

Division, Petlawad District Jhabua; whereby, the application filed by the petitioner/judgment debtor under Order 9 Rule 7 of the Code of Civil Procedure, 1908 (hereinafter to be referred to as “CPC”), has been rejected on the ground of delay and conduct of the parties.

2. In brief facts of the case are that a suit for, declaration, title, possession, and permanent injunction was filed by Kamla Bai Bairagi and 2 others against Motidas Bairagi and four others. The present petitioner/Shambhudas Bairagi happens to be son of Motidas Bairagi. The aforesaid suit was decreed initially on 30.08.2001, and after some other proceeding of remand etc., finally S.A.No.43/2015( Sampat Bai W/o Motidas Bairagi Vs. Kamlabai W/o Tolaram Bairagi) was also dismissed as barred by limitation filed by petitioner/defendant on

15.02.2018 (Annexure R-1).

3. In the aforesaid suit, the execution proceeding for the civil Suit no.16A/1988 was filed in the year 2013, and the counsel for the petitioner, who had given his appearance, pleaded no instructions on 12.3.2021. Thus, the trial Court proceeded exparte against the petitioner. On 16.11.2021, vakalatnama was filed by on behalf of the petitioner by another counsel, and thereafter the matter was fixed on many others occasion, however, an application under Order 9 Rule 7 of the CPC was filed only on 2.12.2022,for setting aside the ex parte order dated 12.03.2021 which was rejected on 28.01.2023, on the ground of delay and on account of conduct of the parties and thereafter on 24.04.2023, Shri Manoj Kumar Purohit was appointed as receiver of the suit property.

4. Counsel for the petitioner has submitted that the petitioner’s application under Order 9 Rule 7 of the CPC ought not to have been rejected by the Executing Court, and it should have been allowed on the next date of proceeding against him exparte as he had appeared on 16.11.2021, and on 4.12.2021 through Advocate. Thus, it is submitted that there was no reason for the executing Court to reject the application out right.

5. Counsel for the respondent, on the other hand has opposed the prayer, and has submitted that no case for interference is made out as the petitioner was aware of the execution proceedings, which is also apparent from the fact that his counsel had appeared till 12.03.2021, and subsequently also other counsel filed vakalatnama on his behalf on 16.11.2021. Thereafter, counsel for the petitioner appeared on as many as 26 dates, but filed an application under Order 9

Rule 7 of the CPC only on 2/12/2022 which has been rightly rejected by the executing Court on account of inordinate delay, and conduct of the petitioner.

6. Counsel for the respondents has further submitted that the respondents are being deprived of the fruits of the decree which was passed in his favour on 30.08.2001, and in fact the suit was filed in the year 1988. Thus, it is submitted that the respondents are still to taste the victory after a period of around

35 years.

7. Heard learned counsel for the parties, and perused the record.

8. So far as Order 9 Rule 7 of CPC is concerned, the same reads as under:-

“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.”

9. At this juncture, this court can also fruitfully rely upon a decision rendered by the Supreme Court in the case of Sangram Singh v. Election Tribunal, 1955 SCC OnLine SC 21 : AIR 1955

SC 425, t

Click Here to Read the rest of this document