Case Note & Summary
The case arises from a civil revision petition filed by the plaintiff (now represented by legal heirs) against an order of the Principal Subordinate Judge, Tiruppur, dated July 14, 2022, allowing an application to set aside an ex-parte decree. The plaintiff had filed O.S. No.192 of 2013 seeking cancellation of a sale deed dated September 17, 2012, executed by the first defendant in favor of the second defendant, along with permanent and mandatory injunctions. During the trial, the second defendant failed to appear and was set ex-parte on September 30, 2013, and an ex-parte decree was passed on the same date. After about 7 years, on March 6, 2020, the second defendant filed I.A. No.80 of 2020 under Order 9 Rule 13 CPC to set aside the ex-parte decree, along with a petition to condone the delay. The Trial Court allowed the application, condoning the delay and setting aside the ex-parte decree. The plaintiff challenged this order by way of civil revision under Section 115 CPC. The High Court examined the reasons given by the second defendant for the delay, which included claims that she was not aware of the suit proceedings and that the plaintiff had obtained the decree by playing fraud. However, the High Court noted that the second defendant admitted that her husband had received the suit summons and engaged a counsel, but she did not follow up on the case. The Court held that the second defendant failed to provide sufficient cause for the delay of 7 years, as mere ignorance or negligence does not constitute sufficient cause under Section 5 of the Limitation Act, 1963. The High Court further observed that the Trial Court had not properly appreciated the facts and had exercised its jurisdiction with material irregularity. Consequently, the High Court allowed the revision petition, set aside the Trial Court's order, and dismissed the application to set aside the ex-parte decree.
Headnote
A) Civil Procedure - Ex-Parte Decree - Setting Aside - Delay Condonation - The second defendant failed to appear in the suit and was set ex-parte; decree was passed on 30.09.2013. She filed I.A. No.80 of 2020 under Order 9 Rule 13 CPC on 06.03.2020 to set aside the ex-parte decree, along with a petition to condone delay of 7 years. The Trial Court allowed the application, condoning the delay. The High Court held that the second defendant did not provide sufficient cause for the delay and that the Trial Court erred in condoning the delay without proper explanation. (Paras 1-10) B) Limitation Act - Condonation of Delay - Sufficient Cause - The second defendant claimed she was not aware of the suit proceedings and that the plaintiff had obtained the decree by playing fraud. However, she admitted that her husband received the suit summons and engaged a counsel, but she did not follow up. The High Court held that mere ignorance of law or negligence does not constitute sufficient cause for condonation of delay under Section 5 of the Limitation Act, 1963. (Paras 7-10) C) Civil Procedure - Revision - Scope under Section 115 CPC - The High Court, in exercise of revisional jurisdiction under Section 115 CPC, can interfere if the subordinate court has exercised its jurisdiction illegally or with material irregularity. The Trial Court's order condoning delay without sufficient cause was held to be a material irregularity warranting interference. (Para 10)
Issue of Consideration
Whether the Trial Court was justified in allowing the application to set aside the ex-parte decree and condoning the delay of 7 years in filing the application, despite the second defendant failing to appear and not providing sufficient cause for the delay.
Final Decision
The High Court allowed the civil revision petition, set aside the order of the Trial Court dated July 14, 2022, and dismissed I.A. No.80 of 2020. Consequently, the ex-parte decree dated September 30, 2013, stands restored.
Law Points
- Limitation for setting aside ex-parte decree
- Sufficient cause for condonation of delay
- Section 5 of Limitation Act
- 1963
- Order 9 Rule 13 CPC
- Section 115 CPC
