Case Details the Koushik Mutually Aided Cooperative Housing Society vs Ameena Begum & Another

Court

Supreme Court of India

Date

1 December 2023

Case No.

Civil Appeal No. 7903 of 2023

Result

Allowed

Bench

B.V. Nagarathna, Ujjal Bhuyan

Citation

[2023] 15 S.C.R. 841 : 2023 INSC 1065

Issue for consideration

Application filed by the Respondent seeking condonation of delay in filing the petition to set aside the ex-parte decree was dismissed by Trial Court. Consequently, the petition filed under Order IX Rule 13 CPC seeking setting aside of the ex-parte decree was also dismissed. In revision, High Court set aside the order by which the application seeking condonation of delay was dismissed thereby allowing the petition filed under Order IX Rule 13 CPC which was dismissed by the Trial Court. Order of the High Court whether justified.

Headnote

Code of Civil Procedure, 1908 – Order IX r.13; s.115 – Appellant filed suit seeking a decree of specific performance of an agreement to sell – Ex-parte decree passed – Respondent filed an application u/Order IX r.13 for setting aside of ex-parte decree along with an application for condonation of delay – Dismissed – Revision Petition filed u/s.115, High Court set aside the aforesaid order implying that the petition filed u/Order IX r.13 which had also stood dismissed was allowed – Propriety: Held: When an application or petition filed under Order IX r.13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII r.1 CPC – Thus, Civil Revision Petition u/s.115 of the CPC would not arise when an application/petition under Order IX r.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 u/s.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 r.1(d) CPC being available, revision under Section 115 of the CPC filed in the instant case was not maintainable – When there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passing the same, a Revision Petition cannot be filed – Impugned order set aside – Alternative Remedy. [Paras 16, 17]

OTHER CASE DETAILS INCLUDING IMPUGNED

ORDER AND APPEARANCES

JUDGMENT / ORDER OF THE SUPREME COURT ORDER 1. Leave granted. 2. Being aggrieved by order dated 08.01.2021 passed by the learned Single Judge of the High Court for the State of Telangana at Hyderabad in Civil Revision Petition No. 4866/2018, this appeal has been preferred. 3. We have heard Sri C. S. Vaidyanathan, learned senior counsel along with Sri Gopal Sankaranarayanan, learned senior counsel for the appellant and Sri Sajan Poovayya, learned senior counsel for the first respondent and perused the material on record. The second respondent has been deleted from the array of parties in te

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