What is the difference in scope of adjudication in the application under O 9 R 13 of CPC and appeal against exparte decree?

 The Madras High Court has opined that, since the law
provides another remedy for redressal from ex-parte decree, the defendant
must have an opportunity to resort to it. Otherwise, the remedy would be

consigned into “decrepitude” which would undermine the very credibility
of the Court system. As against this, our High Court in identical situation
has observed that, it was perfectly open for the defendant to prefer appeal
against the ex-parte decree on merits, whilst he was prosecuting his
application to have the ex-parte decree set aside. Not having done so,
would amount to electing one of the remedies. I respectfully agree with
the view expressed by our High Court. There is no legal impediment in
filing appeal against ex-parte decree after filing application for setting
aside ex-parte decree. Though the remedies are concurrent, their scope is
entirely different. In an application under Order 9 Rule 13 CPC, all that
the Court has to see is, whether the summons in the suit was duly served or
whether the defendant was prevented from appearing before Court by
sufficient cause. If the Court is satisfied on either count, it may set aside
the ex-parte decree and restore the suit to it's original position. But in an
appeal under Section 96 CPC, the appellate Court has wider jurisdiction to
go into the merits of the decree. Therefore, it is for the concerned
defendant to elect his remedy. The election would depend upon the facts
available to a defendant for challenge to ex-parte decree. The facts would
differ from case to case. Every defendant suffering from an ex-parte
decree may not be able to allege non-service of summons or sufficient
cause to remain absent. But he would be able to challenge the decree on
merit. It is obvious that, the two remedies provided are for the purpose of

maintaining the balance of justice even. In the facts of the case, where
there is no service of summons or even after service of summons, the
defendant is prevented by sufficient cause from appearing in the Court, the
provision of Order 9 Rule 13 CPC provides full opportunity of trial to the
defendant. But where such facts are not available, the defendant still gets
an opportunity to challenge the decree just like any other defendant. In
such case, there is no loss of time for the plaintiff. An unscrupulous
defendant may file the application under Order 9 Rule 13 CPC and carry
the order to the highest forum irrespective of the merit in it and thereafter
still file appeal against the decree. Considerable time would be lost for the
plaintiff in that case. Every provision under the law of procedure is aimed
at justness, fairness and full opportunity of hearing to the parties to the
court proceedings. It caters to every conceivable situation. But at the
same time, the law expects a litigant to be straight, honest and fair. The
two remedies provided against ex-parte decree are in respect of two
different situations and are expected to be resorted to only if the facts of
the situation are available to a litigant. The remedies provided as
simultaneous and cannot be converted into consecutive remedies.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3290 OF 2014

 Shri. Balu Gangaram More Vs Bhivchandra Shankar More



CORAM :- SMT. R.P. SONDURBALDOTA, J.
Dated: 20th AUGUST, 2014.
Citation;  2015(2)MHLJ 879

1). Pursuant to the order dated 26th March, 2014 the petition is
taken up for final hearing at the stage of admission. Heard the Counsel.
2). The short question arising for consideration in this appeal is,
whether the proceedings taken out to set aside the ex-parte decree
constitute “sufficient cause” within the meaning of Section 5 of the Indian
Limitation Act so as to extend the period of limitation of an appeal against
the ex-parte decree.
3). The brief facts required to be stated for deciding the question
are as follows :-
. The petitioners, the original plaintiffs filed Regular Civil Suit No. 35
of 2007 against the respondents for partition and separate possession of
the suit property. It was decreed ex-parte on 4th July, 2008. A month
thereafter, i.e. on 5th August, 2008 the respondents obtained its certified
copy. On 12th August, 2008 they filed application under Order 9 Rule 13
Civil Procedure Code (“CPC” for short) for setting aside the ex-parte
decree. The trial Court by its detailed judgment and order dated 6th
August, 2010 rejected the application. The respondents challenged the
order by preferring appeal to the District Court on 29th September, 2010,
but about three years after it's filing, withdrew it on 11th June, 2013.
Immediately on the next day, i.e. on 12th June, 2013 they filed appeal
against the ex-parte decree alongwith Civil Misc. Application No. 56 of
2013 for condonation of delay in filing the appeal of 4 years 10 months and
8 days. By the order dated 20th February, 2014 the District Court allowed
the application and condoned the delay. Being aggrieved by the order, the
petitioners have filed the present petition.
4). In their application for condonation of delay, the respondents
claimed that the writ of summons in the suit was served upon the son of
respondent no.2. Though the respondents are brothers, on account of
differences, inter-se, respondent no.2 has been residing separately. Son of
respondent no.2 is also not on good terms with him. He therefore did not
inform the respondents about the service of writ of summons. In view of
these facts, the respondents carried an impression that service of writ of
summons upon them was not proper. Therefore, they filed the application

for setting aside ex-parte decree. Under the same wrong impression, they
also preferred appeal against the order rejecting their application for
setting aside ex-parte decree. On realising their mistake, the respondents
withdrew their appeal relating to setting aside ex-parte decree and filed
Regular Civil Appeal to challenge the ex-parte decree. Since the
respondents were pursuing wrong proceedings, the delay in filing the First
Appeal should be condoned.
5). The petitioners had opposed the application contending that,
the facts alleged in the application are false. According to them, there are
no disputes or differences, inter-se the respondents. There are also no
disputes between respondent no.2 and his son. The respondents had
consciously remained absent before the Court after receipt of the writ of
summons. It was also contended that, after having elected one remedy
against the ex-parte decree, it is not open for the respondents to resort to
another remedy.
6). The trial Court allowed the application by imposing costs of
Rs.3,000/- upon the respondents. Though the order runs into 8 paras, the
reasons stated in just two lines, read as follows :-
“. Applicants did not get opportunity to contest the suit,
to adduce their evidence. Applicants have spent time in
wrong proceeding, hence it will be just and proper to
condone delay in preferring Appeal.”
7). For assailing the order of the trial Court, Mr. Kulkarni the learned

Advocate appearing for the petitioners submits that, the order merely
makes a brief reference to the petitioners' objections to the application but
does not deal with the same. He also submits that, the remedy of
application under Order 9 Rule 13 CPC resorted to by the respondents,
cannot be said to be wrong proceedings and hence the time spent in
pursuing the remedy cannot be excluded for the purpose of limitation. It
can also not be treated as sufficient cause for condonation of delay. Mr.
Dani, the learned Advocate appearing for the respondents, on the other
hand, seeks to justify the impugned order. He submits that, the defendant
suffering ex-parte decree can, in law, resort to two remedies
simultaneously i.e. to apply under Order 9 Rule 13 CPC for setting the exparte
decree aside and prefer appeal against the decree under Section 96
CPC. Since the law provides for two remedies against the ex-parte decree,
the defendant cannot be expected to exercise his rights to both the
remedies at the same time.
8). The question, whether the proceedings taken out to set aside
the ex-parte decree constitute “sufficient cause” within the meaning of
Section 5 of the Indian Limitation Act so as to extend the period of
limitation of an appeal against the ex-parte decree, had arisen for
consideration of the various Courts earlier. But the answer to the question
by the Courts is not consistent. Mr. Kulkarni, relies upon the following

three decisions of our High Court to support his argument :-
(i) Jotiba Limbaji Kanashenavar v. Ramappa Jotiba
Kanashenavar, reported in 1937 Vol.XL Bom. Law Reporter
page 957.
(ii) Maharashtra Rajya Sahakari Adiwasi Vikas Mahamandal
Maryadit Through its Regional Manager v. M/s. Kanti Shantilal
and Company, reported in 2003 Vol. 105 (2) Bom. Law Reporter
page 349.
(iii) Nandkishor Kanhyalal Agrawal Versus. Dhule Municipal
Corporation & Ors., reported in 2011 (6) Bom.C.R. page 840.
9). The two decisions relied upon by Mr. Dani are of the Andhra
Pradesh High Court and Madras High Court. They are :-
(i). Chekuri Ramachandra Raju Versus. Pathapati
Satyanarayana Raju, reported in LAWS (APH)-1962-11-10, and
(ii) Balakrishnan Versus. Ayyaswami, reported in LAWS
(MAD)-1982-7-7.
10). Jotiba Limbaji's decision (supra) is the direct decision on the
question in which Single Judge of our High Court held that proceedings
taken to set aside an ex-parte decree do not constitute “sufficient cause”
within the meaning of s.5 of the Indian Limitation Act, 1908, so as to
extend the period of limitation of an appeal against the ex-parte decree on

the merits, which had become time barred. The reasons therefor stated in
the order read as follows :-
“. The only question is whether the fact that the
appellant took proceedings to set aside the ex parte decree
can be held to constitute " sufficient cause " within the
meaning of this section. It is difficult, in my opinion, to
hold that on the facts there was any sufficient cause for
not preferring an appeal within the period of limitation. It
was perfectly open to the appellant to prefer an appeal
against the ex parte decree on the merits whilst he was
prosecuting his application to have the ex parte decree set
aside. The result of accepting the contention of the
appellant would involve considerable waste of time. It is
conceivable that after his appeal from the order of the
lower Court refusing to set aside the ex parte decree the
defendant may think of applying to the High Court in
revision and in that case considerable time may be lost.
There is no reason why the appellant should not have
pursued the remedies which the law allowed him and
which seem to me to be concurrent. This view has found
favour with the Calcutta High Court in Ardha Chandra
Rai Choudhry v. Matangini Dassi (1895) I.L.R. 23 Cal.
325 where it was observed by the learned Chief Justice as
follows (p. 327) :-
“. But the petitioner elected to make it, instead
of appealing as (even supposing that the decree
could be called an ex parte decree) he was entitled
to do under Section 540 of the Code, and having
failed in that application on the merits, we think
we cannot now allow him to fall back upon the
remedy which was open to him at the time, and of
which he did not choose to avail himself."
With that view I respectfully agree.”
11). The other two decisions cited by Mr. Kulkarni also of Single
Judge of our High Court, rely upon Jotiba Limbaji's decision, to hold that

time consumed in proceedings under Order 9 Rule 13 CPC to set aside exparte
decree is not sufficient cause for condoning the delay in filing appeal
from the decree.
12). Chekuri Raju's case (supra) of Andhra Pradesh High Court
cited by Mr. Dani, considers a similar, though not identical, situation. It
was considering an application for condonation of delay in filing Second
Appeal, where delay had taken place on account of filing of an application
under Order 41 Rule 21 for re-hearing of the appeal decided ex-parte. The
argument before the Andhra Pradesh High Court was that, the applicant
was bona-fide, prosecuting the other alternate remedy open to him and
that there were no laches or negligence on his part in conducting the same.
The respondent had contended, per-contra, that the remedies open to the
applicant were concurrent but not mutually exclusive. Nothing had
prevented the applicant in prosecuting both the remedies to establish his
bona-fides and that there was nothing to show that he was ill-advised or
misled. Of the different citations placed before it, the Andhra Pradesh
High Court followed the decision of Division Bench of Madras High Court
in Peer Ammal V/s. Nallusami Pillai, reported in AIR 1931
Madras page 149, to hold that, time taken for prosecuting the
application under Order 41 Rule 21 can be a sufficient cause for condoning
the delay. Andhra Pradesh High Court felt that, the decision of Madras

High Court was binding on it. The relevant observations of the Andhra
Pradesh High Court are :-
“. The above decision of a Division Bench of the Madras
High Court is binding on me. It laid down a principle that
appeal need not be filed during the pendency of proceedings
to set aside the ex parte decree. It approved of the
contention which was raised incidentally that the period
covered by such proceedings could be excused under Section
5 of the Limitation Act though it did not discuss and decide
about it. The above decision, therefore, shows that the
Madras High Court was inclined on, principle to hold that
the period covered by proceedings to set aside the ex-parte
decree including the period covered by further proceedings
in the High Court was not a period during which the
petitioner was bound to file an appeal disregarding the
uncertainty referred to above.”
13). The rival side had cited two decisions of Calcutta High Court
before the Andhra Pradesh High Court. They were :-
(i) Ardha Chandra Rai Chowdhry v. Matangini Dassi, reported
in (1895) I.L.R. 23 Cal. page 325, and
(ii) Rajendranath Kanrar v. Kamalakrishna Kundu Chaudhuri
reported in (1932) I.L.R. 59 Cal. page 1057.
The Andhra Pradesh High Court, however, did not discuss the ratio in the
two decisions cited. Apparently because, it felt compelled to follow the
Madras High Court decision. The two decisions, however, are cited with
approval in the Bombay decision as mentioned above. Thus, the decision
of Andhra Pradesh High Court in Chekuri Raju's case, is of no assistance in

arriving at the answer to the question.
14). In Balkrishnan's case, the Madras High Court had to consider
the same question as in Chekuri Raju's case. After general comments
upon the provision of Section 5 of the Limitation Act, Madras High Court
held as follows :-
“. It is true that a party against whom an ex parte
judgment has been rendered can only very well appeal from
it to an appealable forum. But, when the Code grants him
another remedy to move the same Court, which rendered
the ex parte judgment for redress, he is in my judgement,
not only entitled to pursue that remedy, but also entertain a
reasonable hope of its success. It would be a sad
commentary on O. 41 R. 21 and the rationale behind that
provision if we were to hold that persons in the petitioner's
position should put little or no faith in that remedy even
while pursuing it. We may take it that the provision has been
put into the body of the Code in all seriousness so that
parties may resort to it wherever it is available. If the
argument addressed for the respondent were to hold good.
then that would not only have the effect of consigning this
remedy into decrepitude but would also tend to undermine
the very credibility of our Court system which is charged
with administering the provisions. Be that as it may, the
question for decision in this case is whether there is
sufficient cause for the petitioner filing the second appeal
out of time, having particular regard to the proceedings
taken by him under 0. 41. R. 21 and the inevitable time-lag
they entailed. In my view, the very pendency of those
proceedings furnished sufficient cause for the delay in the
filing of the second appeal.”
15). The Madras High Court has opined that, since the law
provides another remedy for redressal from ex-parte decree, the defendant
must have an opportunity to resort to it. Otherwise, the remedy would be

consigned into “decrepitude” which would undermine the very credibility
of the Court system. As against this, our High Court in identical situation
has observed that, it was perfectly open for the defendant to prefer appeal
against the ex-parte decree on merits, whilst he was prosecuting his
application to have the ex-parte decree set aside. Not having done so,
would amount to electing one of the remedies. I respectfully agree with
the view expressed by our High Court. There is no legal impediment in
filing appeal against ex-parte decree after filing application for setting
aside ex-parte decree. Though the remedies are concurrent, their scope is
entirely different. In an application under Order 9 Rule 13 CPC, all that
the Court has to see is, whether the summons in the suit was duly served or
whether the defendant was prevented from appearing before Court by
sufficient cause. If the Court is satisfied on either count, it may set aside
the ex-parte decree and restore the suit to it's original position. But in an
appeal under Section 96 CPC, the appellate Court has wider jurisdiction to
go into the merits of the decree. Therefore, it is for the concerned
defendant to elect his remedy. The election would depend upon the facts
available to a defendant for challenge to ex-parte decree. The facts would
differ from case to case. Every defendant suffering from an ex-parte
decree may not be able to allege non-service of summons or sufficient
cause to remain absent. But he would be able to challenge the decree on
merit. It is obvious that, the two remedies provided are for the purpose of

maintaining the balance of justice even. In the facts of the case, where
there is no service of summons or even after service of summons, the
defendant is prevented by sufficient cause from appearing in the Court, the
provision of Order 9 Rule 13 CPC provides full opportunity of trial to the
defendant. But where such facts are not available, the defendant still gets
an opportunity to challenge the decree just like any other defendant. In
such case, there is no loss of time for the plaintiff. An unscrupulous
defendant may file the application under Order 9 Rule 13 CPC and carry
the order to the highest forum irrespective of the merit in it and thereafter
still file appeal against the decree. Considerable time would be lost for the
plaintiff in that case. Every provision under the law of procedure is aimed
at justness, fairness and full opportunity of hearing to the parties to the
court proceedings. It caters to every conceivable situation. But at the
same time, the law expects a litigant to be straight, honest and fair. The
two remedies provided against ex-parte decree are in respect of two
different situations and are expected to be resorted to only if the facts of
the situation are available to a litigant. The remedies provided as
simultaneous and cannot be converted into consecutive remedies.
16). In the case on hand, the petitioners filed suit for partition in
the year 2007. It was decreed on 4th July, 2008. The respondents filed
application under Order 9 Rule 13 CPC on 15th October, 2008. The

application was dismissed on merits by the order dated 6th August, 2010.
The respondents preferred Civil Appeal against the order on 3rd
September, 2010. About 3 years thereafter i.e. on 11th June, 2013 the
respondents withdrew the appeal without stating any reasons and on the
next day i.e. on 12th June, 2013 filed appeal alongwith application for
condonation of delay. The impugned order allowing the application was
passed on 20th February, 2014. Thus, already six years are lost for the
petitioners.
17). The petitioners contested the application under Order 9 Rule
13 CPC alleging that, the story made out by the respondents of non-service
of summons is false. The petitioner's objections are upheld by the trial
Court. Withdrawal of the appeal by the respondents, would mean
acceptance by them of the findings of the trial Court, that the story of nonservice
of summons is not true. With such false story, the respondents
have succeeded in dragging the decree for six long years. This conduct on
the part of the respondents is not bona-fide conduct. The petition is
therefore allowed in terms of prayer clause (b).
(SMT. R.P. SONDURBALDOTA, J)

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