Case Note & Summary
The appellant, Mahadeorao Satawne, filed two appeals against an order of the trial court dismissing his application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (CPC) to set aside an ex-parte decree passed in a suit for specific performance of contract. The suit was filed by respondent Deochand Patil against the appellant and others. The appellant claimed that he was ill on the date of hearing and could not appear, but he did not produce any medical certificate or evidence to support his claim. Moreover, the application was filed after a delay of about 10 years from the date of the ex-parte decree. The trial court found no sufficient cause for non-appearance and dismissed the application. The High Court upheld the trial court's decision, holding that the appellant failed to prove sufficient cause and that the delay was not explained. The appeals were dismissed with costs.
Headnote
A) Civil Procedure - Setting Aside Ex-Parte Decree - Order 9 Rule 13 CPC - Sufficient Cause - The appellant failed to appear on the date of hearing due to alleged illness but did not produce medical evidence or explain the delay of 10 years in filing the application - Held that the trial court correctly dismissed the application as the appellant did not prove sufficient cause (Paras 5-8).
B) Limitation - Delay in Filing Application - Section 5 of Limitation Act, 1963 - The application under Order 9 Rule 13 CPC was filed after a delay of about 10 years from the date of ex-parte decree - The appellant did not provide any explanation for the delay - Held that the delay was not condonable (Paras 6-7).
Issue of Consideration
Whether the appellant had sufficient cause for his non-appearance when the ex-parte decree was passed, and whether the trial court erred in dismissing the application under Order 9 Rule 13 CPC.
Final Decision
Both appeals are dismissed with costs.
Law Points
- Order 9 Rule 13 CPC
- Sufficient cause for setting aside ex-parte decree
- Delay in filing application
- Limitation Act Section 5
Case Details
2015 LawText (BOM) (04) 141
Appeal Against Order No. 02 of 2014 and Appeal Against Order No. 08 of 2014
Mahadeorao S/o Damduji Satawne (correct name Mahadeorao S/o Damaduji Sathawane)
Nagpur Improvement Trust, Deochand S/o Natthuji Patil, Dnyanoba S/o Kacharuji Bhandekar (dead through LRs), and others
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Nature of Litigation
Appeal against order dismissing application under Order 9 Rule 13 CPC to set aside ex-parte decree in a suit for specific performance of contract.
Remedy Sought
Appellant sought to set aside the ex-parte decree passed against him.
Filing Reason
Appellant claimed he was ill on the date of hearing and could not appear, leading to ex-parte decree.
Previous Decisions
Trial court dismissed the application under Order 9 Rule 13 CPC.
Issues
Whether the appellant had sufficient cause for non-appearance when the ex-parte decree was passed.
Whether the delay of about 10 years in filing the application under Order 9 Rule 13 CPC was condonable.
Submissions/Arguments
Appellant argued that he was ill on the date of hearing and could not appear.
Respondents argued that the appellant failed to produce medical evidence and the delay was unexplained.
Ratio Decidendi
The appellant failed to prove sufficient cause for his non-appearance as required under Order 9 Rule 13 CPC, and the delay of about 10 years in filing the application was not explained, hence the trial court correctly dismissed the application.
Judgment Excerpts
The appellant has not produced any medical certificate or evidence to show that he was ill on the date of hearing.
The application under Order 9 Rule 13 CPC was filed after a delay of about 10 years and no explanation for the delay has been given.
Procedural History
The trial court passed an ex-parte decree in a suit for specific performance. The appellant filed an application under Order 9 Rule 13 CPC to set aside the decree, which was dismissed. The appellant then filed the present appeals against that dismissal.
Acts & Sections
- Code of Civil Procedure, 1908: Order 9 Rule 13
- Limitation Act, 1963: Section 5
