Case Note & Summary
The case arises from a suit for specific performance of an agreement for sale filed by the appellants (plaintiffs) against the respondents (defendants). The appellants alleged that the respondents executed an agreement of sale in 2015 for a total consideration of Rs. 1,89,75,000/-, and that the appellants paid an advance of Rs. 5 lakhs and an additional Rs. 40 lakhs. The respondents cancelled the agreement in 2016, leading to the suit. The respondents entered appearance through counsel in 2016 but failed to file a written statement and were set ex-parte in 2018. An ex-parte decree was passed on 20.08.2018 directing execution of sale deed. In 2021, the respondents filed two applications: I.A. No. 493/2021 for condonation of delay of 939 days in filing the application to set aside the ex-parte decree, and I.A. No. 1163/2021 for setting aside the ex-parte decree. The Trial Court dismissed the condonation application on 29.09.2023, finding the delay not sufficiently explained, and consequently dismissed the application to set aside the ex-parte decree. The respondents filed a Civil Revision Petition No. 710/2024 before the High Court of Telangana only against the order dismissing the condonation application (I.A. No. 493/2021), not against the dismissal of the application to set aside the ex-parte decree (I.A. No. 1163/2021). The High Court allowed the revision, condoned the delay, set aside the ex-parte decree, and restored the suit. The Supreme Court held that the High Court committed a jurisdictional error by setting aside the ex-parte decree when no revision was filed against that order. The Court emphasized that the proceedings for condonation of delay and for setting aside ex-parte decree are distinct and independent, and remedies against them must be pursued separately. Accordingly, the Supreme Court partly allowed the appeal: it did not interfere with the High Court's decision to condone the delay, but set aside the part of the High Court's order that set aside the ex-parte decree and restored the suit. Instead, the Supreme Court revived I.A. No. 1163/2021 for setting aside the ex-parte decree and directed the Trial Court to hear and dispose of it on its own merits.
Headnote
A) Civil Procedure - Ex-Parte Decree - Condonation of Delay - Setting Aside Ex-Parte Decree - Distinct Proceedings - The facts, procedure, adjudication, and remedies for condonation of delay and setting aside an ex-parte decree are independent and must be pursued separately. The High Court erred in setting aside the ex-parte decree when no revision was filed against the order dismissing the application for setting aside the ex-parte decree. (Paras 10-11) B) Limitation Act, 1963 - Section 5 - Condonation of Delay - The High Court's decision to condone the delay of 939 days was not interfered with by the Supreme Court, as the High Court found justifiable reasons. (Para 12-13) C) Civil Procedure Code, 1908 - Order 9 Rule 13 - Setting Aside Ex-Parte Decree - The application for setting aside ex-parte decree must be heard independently on its own merits, and the Trial Court's dismissal of such application as a consequence of dismissal of condonation application was improper. (Para 2.1, 6)
Issue of Consideration
Whether the High Court could set aside an ex-parte decree when the revision petition was only against the order refusing to condone delay in filing the application to set aside the ex-parte decree.
Final Decision
Appeal partly allowed. The Supreme Court did not interfere with the High Court's decision to condone the delay. However, the part of the High Court's order setting aside the ex-parte decree and restoring the suit was set aside. I.A. No. 1163/2021 for setting aside the ex-parte decree was revived and restored to its original number, and the Trial Court was directed to hear and dispose of it on its own merits.
Law Points
- Condonation of delay and setting aside ex-parte decree are distinct proceedings
- must be challenged independently
- High Court cannot set aside ex-parte decree when only revision against condonation order is filed
