The Supreme Court in the case Koushik Mutually Aided Cooperative Housing Society V. Ameena Begum observed and has held that the Civil Revision Petition moved under Section 115 of the Code of Civil Procedure, 1908, CPC is not maintainable against the dismissal of an application filed to set aside an ex-parte decree under Order IX Rule 13 of the CPC.
The bench comprising of Justice BV Nagarathna and Justice Ujjal Bhuyan in the case observed and has stated that when there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passing the same, the Revision Petition cannot be filed before the court. Thus, it being needless to observe that in the absence of an appellate remedy, the revision may be maintainable.
In the present case, the Appellant filed a suit wherein seeking a decree of specific performance of an agreement to sell. The ex-parte decree was passed by the Civil Court and an application was filed by 1st respondent under Order IX Rule 13 of the Code of Civil Procedure, 1908, CPC for setting aside the ex-parte decree along with an application filed for condonation of delay. Thus, the court dismissed the same.
Therefore, the first respondent filed a Civil Revision Petition under Section 115 of the CPC before the High Court and the High Court in the case set aside the order of the lower court which also implies that the petition filed under Order IX Rule 13 CPC which had also stood dismissed was allowed by the High Court.
The court in the case observed and has delved into the question of how a Civil Revision Petition was maintainable against an order which is passed by the Trial Court dismissing the application filed wherein seeking condonation of delay in filing the petition under Order IX Rule 13 Code of Civil Procedure, 1908, CPC and consequently rejecting or dismissing the said petition too.
The court observed that when an application or petition filed under Order IX Rule 13 CPC is dismissed by the court, 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 or petition under Order IX Rule 13 CPC is dismissed.
The court stated that 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 wherein it challenged the order refusing to set aside the order of setting the defendant ex-parte.
The Apex Court highlighted that as against the ex-parte decree, a defendant has three remedies available:
1.By way of filing an application filed under Order IX Rule 13 of CPC wherein seeking for setting aside ex-parte decree;
2.By way of filing an appeal against the ex-parte decree as stated under Section 96(2) of the Code of Civil Procedure, 1908, CPC and
3.By way of review before the same court which is against the ex-parte decree.
The Apex Court observed that there is an option of appeal against the order passed under Order IX Rule 13 CPC rejecting an application for seeking to set aside the decree passed ex-parte.
The court in the case observed that when an application is filed seeking condonation of delay wherein it seeks to set aside an ex-parte decree and the same is dismissed by the court. Consequently, the petition is also dismissed, the appeal under Order XLIII Rule 1(d) CPC is maintainable.
Therefore, the court observed that the appeal filed is 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.
The Apex Court while considering the facts and circumstances of the court stated that the appellate remedy under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908, CPC being available to the Appellant, the revision under Section 115 of the CPC filed was not maintainable.
The counsel, Sr. Adv. C. S. Vaidyanathan and Sr. Adv. Gopal Sankaranarayanan appeared for the Appellant.
The counsel, Sr. Adv. Sajan Poovayya represented the 1st Respondent.