Case Note & Summary
The appellants, Jagdish Tukaram Mulik and others, filed an appeal against an order of the Civil Judge, Senior Division, Pune, dismissing their application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (CPC) for setting aside an ex-parte decree passed in Special Civil Suit No. 100 of 1995. The suit was filed by Sukumar Estates Limited and others for specific performance of an agreement to sell immovable property. The appellants were defendants in the suit. The trial court decreed the suit on 31st March 1999, holding that the defendants had failed to perform their part of the contract. The appellants contended that the decree was ex-parte as they were not heard. However, the record showed that the defendants had filed a written statement and the suit was heard ex-parte only because the defendants did not appear on the date of hearing. The trial court dismissed the application under Order 9 Rule 13 CPC on the ground that the decree was not ex-parte but passed on merits after considering the written statement. The High Court, in appeal, upheld the trial court's order, holding that an application under Order 9 Rule 13 CPC is maintainable only against an ex-parte decree, i.e., a decree passed without the defendant having filed a written statement or without hearing the defendant. Since the defendants had filed a written statement and the decree was passed on merits, the application was not maintainable. The High Court also noted that the appeal under Order 41 Rule 3A CPC was not maintainable as the order refusing to set aside the ex-parte decree was not appealable. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Ex-parte Decree - Order 9 Rule 13 CPC - Maintainability - Application under Order 9 Rule 13 CPC to set aside decree is maintainable only if the decree is ex-parte i.e., passed without the defendant having filed written statement or without hearing the defendant. If the defendant has filed written statement and the decree is passed on merits after hearing the plaintiff, the decree is not ex-parte and such application is not maintainable. (Para 6) B) Civil Procedure - Appeal - Order 41 Rule 3A CPC - Dismissal of Appeal - Where the appeal is against an order refusing to set aside an ex-parte decree, and the appellate court finds that the application under Order 9 Rule 13 was not maintainable, the appeal is liable to be dismissed. (Para 7) C) Specific Performance - Suit for Specific Performance - Decree on Merits - Where the defendant files written statement and the suit is decreed on merits after hearing the plaintiff, the decree is not ex-parte and cannot be challenged under Order 9 Rule 13 CPC. (Para 6)
Issue of Consideration
Whether the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 for setting aside the ex-parte decree was maintainable when the decree was not ex-parte but passed on merits after the defendant had filed a written statement and the matter was heard ex-parte due to non-appearance of the defendant at the hearing.
Final Decision
The High Court dismissed the appeal, holding that the application under Order 9 Rule 13 CPC was not maintainable as the decree was not ex-parte but passed on merits after the defendants had filed a written statement. The appeal under Order 41 Rule 3A CPC was also dismissed as not maintainable. No order as to costs.
Law Points
- Order 9 Rule 13 CPC
- ex-parte decree
- setting aside ex-parte decree
- maintainability of application
- decree on merits
- written statement filed
- suit for specific performance
- limitation
- delay and laches
- Order 41 Rule 3A CPC
- appeal against order refusing to set aside ex-parte decree
