Published on: December 26, 2023 at 13:04 IST
Court: Supreme Court of India
Citation: Koushik Mutually Aided Coop. V. Ameena Begum (2023)
Honourable Supreme Court of India has held that when there is an express provision available under the Code of Civil Procedure, 1908 or any statute under which an appeal is maintainable, by-passing the same, a Revision Petition cannot be filed. It is held that Revision Petition is maintainable in the absence of an appellate remedy in accordance with the law.
16. Against the order passed under Order IX Rule 13 CPC rejecting an application for seeking setting aside the decree passed exparte, an appeal is provided. When an application is filed seeking condonation of delay for seeking setting aside an ex-parte decree and the same is dismissed and consequently, the petition is also dismissed, the appeal under Order XLIII Rule 1(d) CPC is maintainable. Thus, an appeal only against the refusal to set aside the ex-parte decree is maintainable whereas if an order allowing such an application is passed, the same is not appealable.
17. Thus, when an application or petition filed under Order IX Rule 13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC. Thus, Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed.
Thus, when an alternative and effective appellate remedy is available to a defendant, against an ex-parte decree, it would not be appropriate for the defendant to resort to filing of revision under Section 115 of the CPC challenging the order refusing to set aside the order of setting the defendant ex-parte. In view of the appellate remedy under Order XLIII Rule 1(d) CPC being available, revision under Section 115 of the CPC filed in the instant case was not maintainable.
Drafted By Abhijit Mishra