Case Note & Summary
The petitioners, original defendants in a suit for specific performance of contract, challenged an order of the Principal District and Sessions Judge, Chandrapur, which rejected their application (Exh.17) seeking stay of the appeal proceedings filed by them. The petitioners had filed an appeal against an ex-parte decree and simultaneously filed an application under Order 9 Rule 13 CPC before the Trial Court to set aside the ex-parte decree. They argued that under the Explanation to Order 9 Rule 13 CPC, if the appeal is disposed of, their application would become infructuous, causing prejudice. The respondent No.1, the original plaintiff/decree holder, contended that the petitioners' conduct showed delay and abuse of process, and the appellate court was justified in refusing stay. The High Court examined the facts: the suit was filed in 2006, the petitioners were served but did not appear, leading to an ex-parte decree in 2012. The petitioners filed an application to set aside the ex-parte decree in 2017, after a long delay, and also filed an appeal. The appellate court found that the petitioners were attempting to delay the proceedings. The High Court held that the Explanation to Order 9 Rule 13 CPC does not mandate a stay of the appeal; the appellate court has discretion to refuse stay based on the conduct of the parties and the merits of the application. The court found no error in the impugned order and dismissed the writ petition.
Headnote
A) Civil Procedure - Stay of Appeal - Order 9 Rule 13 CPC - Explanation - The Explanation to Order 9 Rule 13 CPC provides that where an appeal is pending against an ex-parte decree, the application to set aside the decree may be disposed of in the appeal. However, this does not mandate a stay of the appeal proceedings; the appellate court has discretion to refuse stay if the conduct of the applicant shows delay and abuse of process. (Paras 3-15) B) Civil Procedure - Ex-parte Decree - Setting Aside - Conduct of Parties - The court may consider the conduct of the defendant in delaying proceedings and the merits of the application under Order 9 Rule 13 CPC. If the defendant has been negligent and the application is filed belatedly, the appellate court may refuse to stay the appeal to prevent abuse of process. (Paras 4-15) C) Civil Procedure - Abuse of Process - Delay - The petitioners filed an application under Order 9 Rule 13 CPC after a long delay and after the appeal was already filed. The appellate court found that the petitioners were attempting to delay the proceedings, and thus refused to stay the appeal. The High Court upheld this decision, holding that the Explanation to Order 9 Rule 13 CPC does not confer an automatic right to stay. (Paras 3-15)
Issue of Consideration
Whether the Appellate Court was justified in refusing to stay the proceedings in the appeal filed by the petitioners (original defendants) when their application under Order 9 Rule 13 CPC for setting aside the ex-parte decree was pending before the Trial Court.
Final Decision
The High Court dismissed the writ petition, upholding the order of the Principal District and Sessions Judge, Chandrapur, rejecting the petitioners' application for stay of appeal proceedings.
Law Points
- Order 9 Rule 13 CPC
- Explanation to Order 9 Rule 13 CPC
- Stay of appeal pending application to set aside ex-parte decree
- Conduct of parties
- Abuse of process
