The recent pronouncement by the Supreme Court underscores that a Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) cannot be entertained when challenging the dismissal of an application made under Order IX Rule 13 of the CPC to set aside an ex-parte decree. The bench, comprising Justice BV Nagarathna and Justice Ujjal Bhuyan, emphasized that if an express appellate remedy exists under the CPC or any applicable statute, bypassing such an avenue renders a Revision Petition invalid. The justices observed that the availability of an appellate remedy is a crucial factor for determining the maintainability of a revision.
In the case under consideration, the Appellant initiated a lawsuit seeking a specific performance decree based on a sale agreement. Subsequently, a Civil Court issued an ex-parte decree in favor of the Appellant. The 1st Respondent then filed an application under Order IX Rule 13 of the CPC, seeking to set aside the ex-parte decree, along with a request for condonation of delay. The court, however, dismissed this application.
Following the dismissal, the first respondent pursued a Civil Revision Petition under Section 115 of the CPC before the High Court. Remarkably, the High Court set aside the lower court's order, implicitly allowing the petition filed under Order IX Rule 13 CPC, which had previously been dismissed.
The Supreme Court delved into the question of the maintainability of a Civil Revision Petition against the Trial Court's order dismissing the application seeking condonation of delay under Order IX Rule 13 CPC and subsequently rejecting the petition itself. The justices clarified that when an application or petition under Order IX Rule 13 CPC is dismissed, the defendant has the option to appeal under Order XLIII Rule 1 CPC. Therefore, the filing of a Civil 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 court highlighted three available remedies for a defendant against an ex-parte decree: 1) filing an application under Order IX Rule 13 CPC to set aside the decree, 2) filing an appeal against the ex-parte decree under Section 96(2) of the CPC, and 3) seeking a review before the same court against the ex-parte decree.
The Apex Court underscored the option of appeal against the order passed under Order IX Rule 13 CPC, specifically addressing the rejection of an application to set aside an ex-parte decree. Notably, the court observed that when an application for condonation of delay is dismissed, and subsequently, the petition is also dismissed, an appeal under Order XLIII Rule 1(d) CPC is maintainable. The court clarified that an appeal is only permissible against the refusal to set aside the ex-parte decree, and if the application is allowed, it is not subject to appeal.
In concluding its findings, the Apex Court reiterated that since the Appellant had an available appellate remedy under Order XLIII Rule 1(d) of the CPC, the revision under Section 115 of the CPC was not maintainable. This decision reaffirms the significance of adhering to the established appellate procedures and exhaustively utilizing available remedies before seeking redress through revision petitions.
TAGS: Supreme Court Civil Revision Petition Section 115 CPC Order IX Rule 13 Ex-parte Decree Appellate Remedy
