Supreme Court: On which ground, the court can order revocation of Succession certificate?

Section 372 of the Indian Succession Act, 1925 governs

applications for grant of succession certificates, whereas Section

383 provides for revocation of such certificates on specified

grounds. Where an application is defective or material facts have

been suppressed or misstated, the certificate issued pursuant

thereto is liable to be revoked under Section 383 of the Act.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO…………………………OF 2026

(@ Special Leave Petition (Civil)No.11006 of 2021)

DEEPESH MAHESWARI AND ANR. Vs RENU MAHESWARI

AND ORS 

Author: SANJAY KAROL, J.

Citation: 2026 INSC 306.

Dated: April 1, 2026.

Read full judgment here : Click here.

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Supreme Court: Order IX Rule 13 CPC Application Not Barred By Dismissal Of Appeal Against Ex-Parte Decree

 The Supreme Court on Wednesday (April 1) observed that the filing of an appeal against an ex-parte decree would not bar the filing of an application for setting aside the ex-parte decree under Order IX Rule 13 Code of Civil Procedure (CPC).

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO…………………………OF 2026

(@ Special Leave Petition (Civil)No.11006 of 2021)

DEEPESH MAHESWARI AND ANR. Vs RENU MAHESWARI

AND ORS 

Author: SANJAY KAROL, J.

Citation: 2026 INSC 306.

Dated: April 1, 2026.

Read full judgment here : Click here.

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Supreme Court: What is distinction between jurisdiction of court under Section 96 of CPC vs. Order 9 Rule 13 of CPC?

 The settled principle of law is that the scope of proceedings

under Section 96 of the Code of Civil Procedure and Order IX

Rule XIII CPC are distinct. Order IX Rule XIII CPC confers a

wider jurisdiction, enabling the applicant to demonstrate

sufficient cause for non-appearance and seek setting aside of an

ex parte decree (Bhanu Kumar Jain v. Archana Kumar) (2005) 1 SCC 757-3J.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO…………………………OF 2026

(@ Special Leave Petition (Civil)No.11006 of 2021)

DEEPESH MAHESWARI AND ANR. Vs RENU MAHESWARI

AND ORS 

Author: SANJAY KAROL, J.

Citation: 2026 INSC 306.

Dated: April 1, 2026

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Supreme Court: Not Necessary To File Separate Application For Delay Condonation Along With Application To Set Aside Ex-Parte Decree

The application under Order 9 Rule 13 CPC

itself had all the ingredients of the application

for condonation of delay in making that

application. Procedure is after all handmaid of

justice.” {Para 13}

12. From the above cases, it is clear that there was no need

to file a separate application for condonation of delay in

the present case as well. The High Court has erred in

taking a hyper technical view and concluding that there

was violation of mandatory provision of law. Endorsing

such a view would effectively mean ignoring the purpose

of judicial procedure. The procedure cannot stand in

the way of achieving just and fair outcome. In the

present case, the Appellant acted bona fide and

diligently. His conduct does not violate any rule of law.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SLP (C.) NO.11259 OF 2022 

DWARIKA PRASAD (D) THR. LRs. Vs  PRITHVI RAJ SINGH.

Author: VIKRAM NATH, J.

Citation:  2024 INSC 1030.

Dated: DECEMBER 20, 2024.

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Bombay HC: Casual Absence Of Defendant On Insignificant Date Would Not Make Court Order Ex-Parte

  The term ‘ex-parte’ means in absence of party. Order IX of

the Code provides consequences of non-appearance of the party.

Particularly, Rule 6 to Order IX prescribes a procedure in the

contingency when only plaintiff appears. In case when summons was duly served but the defendant does not appear then the Court may make an order that the suit be heard ex-parte in terms of Sub-clause (a) of Clause (1) to Rule 6 of Order IX of the Code. Basically, when defendant fails to appear and consequently no evidence could be recorded on his behalf and defendant’s case is closed, then the Court is bound to proceed under Rule 2 of Order XVII of the Code. The basic requirement is the absence of defendant when the suit was called on for hearing resulting into deciding case without defendant’s presence. {Para 35}

36. The provisions of Order IX Rule 13 of the Code have beenintroduced to remedied the situation where the defendant is absent meaning thereby the cause was decided in his absence. It is for the reason that, there is no contest due to absence of defendant at the time of hearing. Even if written statement is filed but the defendant remains absent throughout till adjudication then certainly the decision can be termed as an ‘ex-parte’, however a casual absence of defendant on any intermediate date would not suffice to treat the decision ex-parte. The defendant cannot take disadvantage of his isolated absence on insignificant date to state that the order was ex-parte. In order to assume the character of ex-parte, there must be absence of defendantat the time of hearing, meaning thereby in his absence the Court has proceeded in passing the decree. In short, defendant’s voluntary act of not cross examining the party and not advancing arguments, is not capable enough to term the order as ‘ex-parte’.

37. In sum and substance, the order passed by the First

Authority after considering the rival contentions was purely on merit. The respondent was throughout present in the proceeding as well as participated till fag end. The First Authority has taken into account written statement of the respondent as well as his evidence affidavit was on record. The First Authority has heard submissions of the claimants in presence of the respondent and as per record also heard submissions of respondent too. It is not a case that on the date of hearing, the respondent was absent to claim the benefit. The factual position in all petitions is one and the same. The Second Authority fell in serious error in holding that the orders were ex-parte decision amenable to set aside in  terms of Order IX Rule 13 of the Code. In absence of the applicability of Order IX Rule 13 of the Code, the sameAuthority has no power to set aside its own order. Though submissionsare made on merits that the First Authority went wrong in assessingcompensation, however said challenge would squarely fall within thecompetence of the Appellate Forum and not to the same Authority. In short, the impugned orders passed in all petition are unsustainable in the eyes of law.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO S . 1667 OF 20 22

Jyoti  Mahesh Agrawal Vs Deputy Chief EngineerConstruction) Central Railway

CORAM : VINAY JOSHI, J.

Dated : 19.12.20222.

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Whether court should set aside exparte decree if defendant refused to accept service of summons?

The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. In a slightly 

different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 made following observations:-

“14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh AIR 1992 SC 1604 : State of M.P. vs. Hiralal & Ors.  (1996) 7 SCC 523 and V. Raja Kumari vs. P. Subbarama Naidu & Anr. (2004) 8 SCC 774]. … ….”

20. Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed

the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1.

21. In the light of the features indicated above and the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. OF 2021

VISHWABANDHU  Vs SRI KRISHNA AND ANR. 

Author: Uday Umesh Lalit, J.

Dated: September 29, 2021. 

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What remedies are available to the defendant if court passes an exparte decree against him?

 The proviso appended to Order IX Rule 13 of the Code of Civil Procedure postulates that when an ex parte decree has been passed against some of the defendants and it is necessary to set aside the entire decree, the Court is not powerless to do so. If an application for setting aside the ex parte decree was maintainable at the instance of the appellants, we fail to understand as to why a separate suit was required to be filed. When an ex parte decree is passed, the defendant may have more than one remedies. He may file a suit contending that the decree was obtained fraudulently. He may file an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. He may prefer an appeal from the ex parte judgment and decree. In a given case, he may also file a review application.

13. In Bhanu Kumar Jain v. Arcbana Kumar and Anr. MANU/SC/1079/2004 : AIR2005SC626 , this Court held:

26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7316 of 2008 

Decided On: 16.12.2008

 Mahesh Yadav and Ors. Vs.  Rajeshwar Singh and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and Cyriac Joseph, JJ.

Author: S.B. Sinha, J.

Citation:  MANU/SC/8463/2008,AIR 2009 SC 1064

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Whether court can set aside exparte decree only against some of defendants?

 In fact, this Court, in Vasant J. Mahajan (supra) has explained that the proviso to Order 9 Rule 13 of CPC contemplates cases where the decree is of such a nature that it cannot be set aside against one defendant only. Such cases are, for instance, a decree for possession of a house in the joint possession of persons, a partition decree, and a decree for joint possession of property in the joint possession of two or more persons. It is the nature of the decree that is the determining factor and not the reasons behind the decree. Even if the defence of two defendants is common and even if the decree proceeds on a ground common to all the defendants, the ultimate decree should not be set aside against all the defendants unless it is of such a nature that it cannot be said aside as against one defendant only. Generally, in a case of money decree, the application of the proviso to Order 9 Rule 13 is not attracted. In the said case, this Court, was dealing with a money decree and in this context, this Court held that such a decree could not be regarded as indivisible because a suit for money can be decreed against one of the defendants and dismissed against another or it may be decreed against both the defendants or dismissed against both. To such a decree, the provisions of proviso to Order 9 Rule 13 are not attracted. Such a decree is not one and indivisible.

36. In case of Ramchandra Ramgopal (M/s.) Through Jugalkishore s/o. Navalkishore Kothari vs. Kamal Kishore s/o. Onkaramal Rungta and ors. - MANU/MH/1190/2004 : 2005 (2) Mh. L.J. 623, this Court has held that the proviso to Order 9, Rule 13 reveals that it is not sufficient that there was possibility of inconsistent decrees but what is necessary is that the original decree, which is being set aside at the instance of only one defendant, is of such a nature that it cannot be set aside as against that defendant only. If there is such an infirmity in the original decree, then only action as per above proviso of Order 9 Rule 13 is warranted.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5123 of 2017 and 3587 of 2018

Decided On: 02.05.2019

 Rupee Cooperative Bank Limited Vs. Vijaya Paints Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: 2020 (1) MHLJ 210

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Supreme Court: Party can not be denied right to file first appeal after dismissal of application for setting aside exparte decree

 An appeal Under Section 96(2) Code of Civil Procedure is a statutory right, the Defendant cannot be deprived of the statutory right merely on the ground that earlier, the application filed Under Order IX Rule 13 Code of Civil Procedure was dismissed. Whether the Defendant has adopted dilatory tactics or where there is a lack of bona fide in pursuing the remedy of appeal Under Section 96(2) of the Code, has to be considered depending upon the facts and circumstances of each case. In case the court is satisfied that the Defendant has adopted dilatory tactics or where there is lack of bona fide, the court may decline to condone the delay in filing the first appeal Under Section 96(2) Code of Civil Procedure. But where the Defendant has been pursuing the remedy bona fide Under Order IX Rule 13 Code of Civil Procedure, if the court refuses to condone the delay in the time spent in pursuing the remedy Under Order IX Rule 13 Code of Civil Procedure, the Defendant would be deprived of the statutory right of appeal. Whether the Defendant has adopted dilatory tactics or where there is lack of bona fide in pursuing the remedy of appeal Under Section 96(2) of the code after the dismissal of the application Under Order IX Rule 13 Code of Civil Procedure, is a question of fact and the same has to be considered depending upon the facts and circumstances of each case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8898 of 2019

Decided On: 21.11.2019

 N. Mohan  Vs.  R. Madhu

Hon'ble Judges/Coram:

R. Banumathi, A.S. Bopanna and Hrishikesh Roy, JJ.

Citation: AIR 2020 SC 41

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Whether subsequent suit can be stayed if application for setting aside exparte decree is pending?

 The object behind enacting Section" 10 of CPC would be that in regard to same property and issues involved between the same party, conflicting findings may not come by the courts. In the present case, the suit filed by the respondent herein has already been decided by ex parte judgment and decree dated 7.4.2003 and only an application under Order 9 Rule 13 is pending adjudication. The question which arises for consideration by this Court is whether mere pendency of an application under Order 9 Rule 13 CPC would tantamount to pendency of suit in the court. In view of this Court, since Original suit no. 487 of 2002 filed by the defendant has been decided by ex-parte judgment and decree dated 7.4.2003, therefore, an application filed by the plaintiffs for setting aside the ex-parte decree cannot be treated as pendency of suit. Thus, the learned revisional court has committed. illegality in allowing the revision partly and in deciding issue no. 3 in favour of defendant and staying the proceedings of original suit no. 49 till the decision in misc. application no. 67 of 2003 under Order 9 Rule 13 CPC.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 964 of 2015

Decided On: 05.04.2019

Cooper Pharma  Vs.  Shamshad Ahmad

Hon'ble Judges/Coram:

Lok Pal Singh, J.

Citation: AIR 2019 Uttar 111

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Whether exparte decree can be set aside if summon was served to wife by paper publication?

Article 123 of the Schedule to the Limitation Act, 1963 relates to applications filed to set aside a decree passed ex-parte, or to re-hear an appeal decreed or heard ex-parte. While the limitation prescribed in such cases is 30 days, the period of limitation is required to be computed from the date of the decree, or where the summons or notice was not duly served, from when the applicant had knowledge of the decree. As noted hereinabove, the notices sent to the appellant's address were returned unserved. Sri. S.K. Jain, learned Senior Counsel appearing on behalf of the appellant, would submit that the respondent had deliberately sent the notice to the wrong address in order to ensure that the appellant remained unaware of the suit, for divorce, having been filed. We are satisfied that, in the present case, service of notice through paper publication would not constitute due service in terms of Article 123 of the Limitation Act, as the appellant is a house wife without any independent source of livelihood, and is a daughter of petty vegetable vendor living in an interior part of the State of West Bengal. The court below should, therefore, have condoned the delay in filing the application under Order 9 Rule 13 CPC.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No. 502 of 2017

Decided On: 15.11.2018

 Paromita Mondal Vs.  Tarun Kumar Mondal

Hon'ble Judges/Coram:

Ramesh Ranganathan, C.J. and Alok Singh, J.

Citation: AIR 2019 UTTAR 37

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Whether Time spent to set aside ex-parte decree is “sufficient cause” to condone delay in filing Appeal?

A conjoint reading of Order IX Rule 13 CPC and Section
96(2) CPC indicates that the defendant who suffered an ex-parte
decree has two remedies:- (i) either to file an application under
Order IX Rule 13 CPC to set aside the ex-parte decree to satisfy
the court that summons were not duly served or those served, he
was prevented by “sufficient cause” from appearing in the court
when the suit was called for hearing; (ii) to file a regular appeal
from the original decree to the first appellate court and challenge
the ex-parte decree on merits.
11. It is to be pointed out that the scope of Order IX Rule 13
CPC and Section 96(2) CPC are entirely different. In an
application filed under Order IX Rule 13 CPC, the Court has to

see whether the summons were duly served or not or whether
the defendant was prevented by any “sufficient cause” from
appearing when the suit was called for hearing. If the Court is
satisfied that the defendant was not duly served or that he was
prevented for “sufficient cause”, the court may set aside the exparte
decree and restore the suit to its original position. In terms
of Section 96(2) CPC, the appeal lies from an original decree
passed ex-parte. In the regular appeal filed under Section 96(2)
CPC, the appellate court has wide jurisdiction to go into the
merits of the decree. The scope of enquiry under two provisions
is entirely different. Merely because the defendant pursued the
remedy under Order IX Rule 13 CPC, it does not prohibit the
defendant from filing the appeal if his application under Order IX
Rule 13 CPC is dismissed.
12. The right of appeal under Section 96(2) CPC is a statutory
right and the defendant cannot be deprived of the statutory right
of appeal merely on the ground that the application filed by him
under Order IX Rule 13 CPC has been dismissed.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4669 OF 2019


BHIVCHANDRA SHANKAR MORE  Vs  BALU GANGARAM MORE 

R. BANUMATHI, J.
Dated:May 07, 2019.

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Whether time spent in proceeding with application U 9 R 13 of CPC can be condoned in filing of first appeal?

As pointed out earlier, an appeal under Section 96 CPC is a
statutory right. Generally, delays in preferring appeals are
required to be condoned, in the interest of justice, where there is
no gross negligence or deliberate inaction or lack of bonafide is
imputable to the party seeking condonation of delay.
17. In the case in hand, respondents No.1 to 13 filed a suit for
partition in the year 2007, which was decreed ex-parte on

04.07.2008. Appellant and respondents No.14 and 15 filed
application under Order IX Rule 13 CPC and the same came to
be dismissed on 06.08.2010. Being aggrieved by dismissal of
application under Order IX Rule 13 CPC, the appellant and
respondents No.14 and 15 preferred an appeal under Order XLIII
Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was
pending for about three years and the same was withdrawn on
11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the
appellant and respondents No.14 and 15 filed an appeal
challenging the ex-parte decree and judgment dated 04.07.2008
passed in Regular Civil Suit No.35 of 2007. It cannot be said that
the appellant and respondents No.14 and 15 were grossly
negligent in pursuing the matter more so, when the decree was
passed in the suit for partition.
18. It is pertinent to note that as per Section 97 CPC where any
party aggrieved by a preliminary decree does not appeal from
such decree, he shall be precluded from disputing its correctness
in any appeal which may be preferred from the final decree. The
object is that the questions decided by the court at the stage of
passing preliminary decree cannot be challenged at the time of
final decree. If no appeal had been preferred against the

preliminary decree, the suit filed by the respondents-plaintiffs
being a suit for partition, the appellant would be deprived of the
opportunity in challenging the decree on merits. In the interest of
justice, the appellant and respondents No.14 and 15 are to be
given an opportunity to challenge the ex-parte decree dated
04.07.2008 on merits, notwithstanding the dismissal of their
application filed under Order IX Rule 13 CPC.
19. In the facts and circumstances of the present case, the time
spent in pursuing the application under Order IX Rule 13 CPC is
to be taken as “sufficient cause” for condoning the delay in filing
the first appeal. The impugned judgment of the High Court
cannot be sustained and is liable to be set aside.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4669 OF 2019

BHIVCHANDRA SHANKAR MORE Vs  BALU GANGARAM MORE 

R. BANUMATHI, J.
Dated:May 07, 2019.

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Whether decree will be deemed to be exparte decree if defendant has filed his written statement?

 Looking to the law as laid down by the Supreme Court and thereafter followed by our Court, what becomes clear is that where the Defendant has filed his Written Statement but remains absent on the date when the suit is called out for hearing and where the Defendant has not led any evidence, the suit can be disposed of (as per Order XVII Rule 2) only in any of the modes as prescribed under Order IX. Once the suit is disposed of under Order IX and the Defendant had not appeared at the hearing of the suit and a decree is passed in his absence, then, an application to set aside that decree is certainly maintainable under Order IX Rule 13. This being the clear enunciation of the law, I find that the Courts below were totally in error in coming to the conclusion that merely because the Defendant was served with the writ of summons and filed his Written Statement and thereafter did not appear, the decree passed could not be said to be one as being ex-parte.

IN THE HIGH COURT OF BOMBAY

Writ Petition (L) No. 17138 of 2017

Decided On: 28.06.2017

 R.P. Bros Vs. Fakhruddin Siraj Topiwala

Hon'ble Judges/Coram:
B.P. Colabawalla, J.

Citation: 2017(6) MHLJ 845

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Whether defendant can make application for setting aside exparte decree after execution of exparte decree?

It would be pertinent to mention that the mere fact that the ex parte decree has been executed does not disentitle the Defendant from applying Under Order IX Rule 13, Code of Civil Procedure to get the same set aside. Reference may be made to Sm. Sankaribala Dutta v. Sm. Asita Barani Dasi and Ors. MANU/WB/0076/1977 : AIR 1977 Calcutta 289 and Mst. Fatima Khatoon v. Swarup Singh MANU/WB/0059/1984 : AIR 1984 Calcutta 257 .

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2062 of 2009

Decided On: 08.09.2017

Vijay Singh Vs. Shanti Devi and Ors.

Hon'ble Judges/Coram:

Madan B. Lokur and Deepak Gupta, JJ.

Citation: (2017) 8 SCC 837,2018(2) MHLJ 7

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When court should not set aside exparte decree?

Civil - Non service of summons - Order 9 Rule 13 of Civil Procedure Code - Petitioner has moved an application under Order 9 Rule 13 of Code of Civil Procedure read with Section 151 for setting aside the decree passed ex-parte and for condonation of delay - Held, in proceeding under Order 9 Rule 13 of the Code of Civil Procedure, Court has to see whether the summons were not duly served and if one is prevented by sufficient cause from appearing when the suit was called on for hearing - In the present case registered envelope returned unserved with a office note of the process server that authorised representative refused to take service of the writ of summons - Process server not called upon to examined the non service and discharge the onus - Burden of proof lies with the Petitioner to rebut the presumption and there was no sustainable proof to establish that writ of summons was not served - Therefore, scope and ambit of the Order 9 Rule 13 of the Code of Civil Procedure is not applicable - Application dismissed.

IN THE HIGH COURT OF CALCUTTA

G.A. Nos. 3713 of 1998 and 3468 of 1999 and Civil Suit No. 382 of 1998

Decided On: 23.04.2002

 Sri Kamalesh Adhikary

Vs.

 Dakshin Damodar Cold Storage Private Limited

Hon'ble Judges/Coram:

Amitava Lala, J.

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When exparte decree can be set aside as per O 9 R 13 of CPC even if defendant has appeared in the suit?

From the aforesaid it is, therefore, clear that if the plaintiff was
called upon to lead evidence and he thereafter filed various documents on
record which came to be exhibited and after considering the same a decree
came to be passed in absence of defendant, the same was an exparte decree.
In the present case, the record indicates that the Court did not pass any
judgment on account of failure of the defendants to file written statement.
The case was kept for no written statement evidence after which plaintiff
initially amended the plaint, led his evidence and an opportunity was given

to the defendants to cross examine the plaintiff.   Hence, judgment passed
thereafter cannot be termed as a judgment delivered either under Order 8
Rule 5 or Order 8 Rule 10 of the Code.   Merely because the Small Causes
Court  had   observed  that  the  judgment   had  been  passed   without   written
statement, that would not mean that said observation can prevail even when
it is evident from the record that the judgment as passed was not under
Order VIII Rule 5 or Rule 10 of the Code.  Though the judgment has been
passed without the written statement on record, it is after calling upon the
plaintiff to lead evidence and prove his case.  Hence, ratio of the decision in
Jugalkishore   Kothari  (supra)   cannot   apply   in   the   aforesaid   facts.     The
application therefore moved by the defendants under Order IX Rule 13 of the
Code was perfectly tenable.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT   PETITION  NO.    3802    OF     2013

Ashok Kundalrai Mohekar,V The National Textile Corporation
Ltd. 

CORAM:   A. S. CHANDURKAR  J.
                         

DATED: MARCH  12, 2015.
Citation:2016(4) ALLMR1 04

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What is the difference in scope of adjudication in the application under O 9 R 13 of CPC and appeal against exparte decree?

 The Madras High Court has opined that, since the law
provides another remedy for redressal from ex-parte decree, the defendant
must have an opportunity to resort to it. Otherwise, the remedy would be

consigned into “decrepitude” which would undermine the very credibility
of the Court system. As against this, our High Court in identical situation
has observed that, it was perfectly open for the defendant to prefer appeal
against the ex-parte decree on merits, whilst he was prosecuting his
application to have the ex-parte decree set aside. Not having done so,
would amount to electing one of the remedies. I respectfully agree with
the view expressed by our High Court. There is no legal impediment in
filing appeal against ex-parte decree after filing application for setting
aside ex-parte decree. Though the remedies are concurrent, their scope is
entirely different. In an application under Order 9 Rule 13 CPC, all that
the Court has to see is, whether the summons in the suit was duly served or
whether the defendant was prevented from appearing before Court by
sufficient cause. If the Court is satisfied on either count, it may set aside
the ex-parte decree and restore the suit to it's original position. But in an
appeal under Section 96 CPC, the appellate Court has wider jurisdiction to
go into the merits of the decree. Therefore, it is for the concerned
defendant to elect his remedy. The election would depend upon the facts
available to a defendant for challenge to ex-parte decree. The facts would
differ from case to case. Every defendant suffering from an ex-parte
decree may not be able to allege non-service of summons or sufficient
cause to remain absent. But he would be able to challenge the decree on
merit. It is obvious that, the two remedies provided are for the purpose of

maintaining the balance of justice even. In the facts of the case, where
there is no service of summons or even after service of summons, the
defendant is prevented by sufficient cause from appearing in the Court, the
provision of Order 9 Rule 13 CPC provides full opportunity of trial to the
defendant. But where such facts are not available, the defendant still gets
an opportunity to challenge the decree just like any other defendant. In
such case, there is no loss of time for the plaintiff. An unscrupulous
defendant may file the application under Order 9 Rule 13 CPC and carry
the order to the highest forum irrespective of the merit in it and thereafter
still file appeal against the decree. Considerable time would be lost for the
plaintiff in that case. Every provision under the law of procedure is aimed
at justness, fairness and full opportunity of hearing to the parties to the
court proceedings. It caters to every conceivable situation. But at the
same time, the law expects a litigant to be straight, honest and fair. The
two remedies provided against ex-parte decree are in respect of two
different situations and are expected to be resorted to only if the facts of
the situation are available to a litigant. The remedies provided as
simultaneous and cannot be converted into consecutive remedies.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3290 OF 2014

 Shri. Balu Gangaram More Vs Bhivchandra Shankar More



CORAM :- SMT. R.P. SONDURBALDOTA, J.
Dated: 20th AUGUST, 2014.
Citation;  2015(2)MHLJ 879

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