Case Note & Summary
The case arises from Regular Civil Suit No.52 of 1992 filed by the respondent (plaintiff) against the petitioners (defendants) for possession of suit site and removal of a shed. The suit was decreed ex parte on 29/10/1992 by the Civil Judge, Junior Division, Saswad, directing the defendant to remove the shed and hand over vacant possession by 1/12/1992. On 30/11/1992, the defendant filed an application under Order IX Rule 13 CPC to set aside the ex parte decree. The trial court, by order dated 2/9/1993, held that the application was not maintainable because the decree was passed under Order VIII Rule 5(2) or Order VIII Rule 10 CPC, not under Order IX Rule 6 or 7. The defendant challenged this order by filing Civil Revision Application No.574 of 1997 before the Bombay High Court. The High Court considered the legal issue of maintainability of an application under Order IX Rule 13 CPC when the decree is passed under Order VIII Rule 5(2) or Rule 10. The Court observed that the decree was ex parte and the defendant had not appeared despite service. The Court held that Order IX Rule 13 CPC applies to all ex parte decrees, including those passed under Order VIII Rule 5(2) or Rule 10, as the essence is that the defendant did not appear. The Court set aside the trial court's order and remanded the matter for fresh consideration on merits, directing the trial court to decide the application under Order IX Rule 13 CPC in accordance with law.
Headnote
A) Civil Procedure - Ex Parte Decree - Maintainability of Application under Order IX Rule 13 - Code of Civil Procedure, 1908, Order IX Rule 13, Order VIII Rule 5(2), Order VIII Rule 10 - The issue was whether an application under Order IX Rule 13 CPC is maintainable to set aside an ex parte decree passed under Order VIII Rule 5(2) or Order VIII Rule 10 CPC - The Court held that such an application is maintainable as the decree is still an ex parte decree and the defendant can show sufficient cause for non-appearance - The trial court's order rejecting the application as not maintainable was set aside (Paras 1-3).
Issue of Consideration
Whether an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 is maintainable to set aside an ex parte decree passed under Order VIII Rule 5(2) or Order VIII Rule 10 CPC.
Final Decision
The High Court allowed the civil revision application, set aside the trial court's order dated 2/9/1993, and remanded the matter to the trial court for fresh consideration of the application under Order IX Rule 13 CPC on its own merits in accordance with law.
Law Points
- Order IX Rule 13 CPC application is maintainable even if decree is passed under Order VIII Rule 5(2) or Rule 10 CPC
- Ex parte decree can be set aside if defendant shows sufficient cause for non-appearance
- Revision lies against order rejecting application under Order IX Rule 13 CPC
