LI Network
Published on: December 15, 2023 at 11:00 IST
The Supreme Court has clarified that a Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) is not permissible in cases where an application under Order IX Rule 13 of the CPC, seeking to set aside an ex-parte decree, has been dismissed.
The bench comprising Justice BV Nagarathna and Justice Ujjal Bhuyan emphasized that when there is a specific provision for appeal under the CPC or any relevant statute, resorting to a Revision Petition is not appropriate.
The case in question involved a suit filed by the Appellant seeking a decree for specific performance of an agreement to sell. Subsequently, an ex-parte decree was granted by the Civil Court. The 1st Respondent filed an application under Order IX Rule 13 of the CPC to set aside the ex-parte decree, along with a plea for condonation of delay, which was dismissed by the court.
Following the dismissal, the first respondent filed a Civil Revision Petition under Section 115 of the CPC before the High Court, resulting in the High Court overturning the lower court’s decision.
The Supreme Court, however, scrutinized the maintainability of a Civil Revision Petition against the order of the Trial Court dismissing the application under Order IX Rule 13 CPC.
The Court underscored that when an application under Order IX Rule 13 CPC is dismissed, the defendant has the option to appeal under Order XLIII Rule 1 CPC.
The judgment emphasized that resorting to a Revision Petition under Section 115 of the CPC is inappropriate when an alternative and effective appellate remedy is available to the defendant against an ex-parte decree.
The Supreme Court further elucidated that against an ex-parte decree, a defendant has three available remedies: filing an application under Order IX Rule 13 CPC, filing an appeal under Section 96(2) of the CPC against the ex-parte decree, and seeking a review before the same court against the ex-parte decree.
The apex court concluded that since an appeal under Order XLIII Rule 1(d) of the CPC is available to the Appellant against the refusal to set aside the ex-parte decree, the Revision Petition under Section 115 of the CPC was not maintainable.
The Appellant was represented by Senior Advocates C. S. Vaidyanathan and Gopal Sankaranarayanan, while Senior Advocate Sajan Poovayya appeared for the 1st Respondent.
Case Title: Koushik Mutually Aided Cooperative Housing Society V. Ameena Begum
