Case Note & Summary
The petitioner was the sole defendant in O.S.111/06 filed by the respondent for recovery of Rs.1,48,500/- before the Senior Civil Judge, Muddebihal. The suit was dismissed ex parte. The respondent filed a regular appeal R.A.148/08 before the District Court, Bijapur. In that appeal, notice to the petitioner was dispensed with under Order XLI Rule 14 CPC (Karnataka Amendment) as he had been placed ex parte. The appeal was decreed on 18.7.2011, setting aside the dismissal and decreeing the suit. The petitioner then filed an application under Order IX Rule 13 CPC before the appellate court to set aside the appellate decree. That application was dismissed as not maintainable on 4.9.2013 in Civil Misc.21/13. The petitioner challenged that order in this civil revision petition under Section 115 CPC. The High Court held that an application under Order IX Rule 13 CPC is maintainable only before the trial court to set aside an ex parte decree passed by that court, not before the appellate court to set aside its own decree. The proper remedy for the petitioner was to file a second appeal under Section 100 CPC. The revision petition was dismissed as devoid of merit.
Headnote
A) Civil Procedure Code - Order IX Rule 13 - Maintainability - Application to set aside ex parte decree - An application under Order IX Rule 13 CPC is maintainable only before the trial court to set aside an ex parte decree passed by that court. It is not maintainable before the appellate court to set aside a decree passed by the appellate court itself. The proper remedy is to file a second appeal under Section 100 CPC. (Paras 2-4)
B) Civil Procedure Code - Order XLI Rule 14 - Karnataka Amendment - Dispensation of notice - Under Order XLI Rule 14 CPC (Karnataka Amendment), notice to the respondent in appeal may be dispensed with if the respondent was placed ex parte before the trial court. (Para 2)
C) Civil Procedure Code - Section 115 - Revision - Maintainability - A revision under Section 115 CPC lies against an order deciding a case, not against an order rejecting an application as not maintainable. However, the court may examine the correctness of the order in revision. (Para 4)
Issue of Consideration
Whether an application under Order IX Rule 13 CPC is maintainable before the appellate court to set aside a decree passed by the appellate court itself.
Final Decision
The civil revision petition is dismissed. The order dated 4.9.2013 in Civil Misc.21/2013 passed by the III Addl. District Judge, Bijapur is confirmed. No order as to costs.
Law Points
- Order IX Rule 13 CPC not applicable to set aside appellate decree
- Order XLI Rule 14 CPC (Karnataka Amendment) dispensation of notice
- Section 115 CPC maintainability of revision
Case Details
2015 LawText (KAR) (09) 8
Sri. Gopalakrishna B. Yadav (for petitioner), Sri. D.P. Ambekar (for respondent)
Gundappa A/s Basappa Badiger, Gundappa S/o Sangappa Pattar
Sha Motilal S/o Poonamchand Oswal, The name and style of the first by its owner Sha Tilokchand Motilal
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Nature of Litigation
Civil revision petition against order dismissing application under Order IX Rule 13 CPC as not maintainable
Remedy Sought
Petitioner sought to set aside the judgment and decree passed by the first appellate court in R.A.148/08
Filing Reason
Petitioner's application under Order IX Rule 13 CPC was dismissed as not maintainable by the appellate court
Previous Decisions
Original suit O.S.111/06 dismissed ex parte; appeal R.A.148/08 decreed on 18.7.2011 setting aside dismissal and decreeing suit; application under Order IX Rule 13 CPC dismissed on 4.9.2013
Issues
Whether an application under Order IX Rule 13 CPC is maintainable before the appellate court to set aside a decree passed by the appellate court itself.
Submissions/Arguments
Petitioner argued that the application under Order IX Rule 13 CPC was maintainable before the appellate court.
Respondent argued that the application was not maintainable as Order IX Rule 13 CPC applies only to trial court decrees.
Ratio Decidendi
An application under Order IX Rule 13 CPC is maintainable only before the trial court to set aside an ex parte decree passed by that court. It is not maintainable before the appellate court to set aside a decree passed by the appellate court itself. The proper remedy is to file a second appeal under Section 100 CPC.
Judgment Excerpts
Petitioner was the sole defendant in an original suit in O.S.111/06, a suit which was pending before the Senior Civil Judge, Muddebihal, Bijapur.
The said suit had been filed by the respondent herein for the recovery of Rs.1,48,500/-.
The said suit was dismissed ex parte as against which a regular appeal was filed by the plaintiff in R.A.148/08 before the District Court, Bijapur.
In the said appeal, notice to this petitioner was dispensed with on the ground that he had been placed ex parte before the trial court in terms of Order XLI Rule 14, C.P.C. (Karnataka Amendment).
The said appeal, R.A.148/08 was decreed on 18.7.2011 and thereby the order dismissing the suit vide considered order dated 20.9.2008 was set aside and consequently the suit was decreed.
Later on this petitioner chose to file a petition under Order IX Rule 13, C.P.C. before the appellate court requesting to set aside the judgment and decree passed against him by the first appellate court.
The said petition came to be dismissed on 4.9.2013 in Civil Misc.21/13.
It is this order which is challenged in this revision petition.
Procedural History
Original suit O.S.111/06 filed by respondent for recovery of Rs.1,48,500/- before Senior Civil Judge, Muddebihal. Suit dismissed ex parte on 20.9.2008. Respondent filed appeal R.A.148/08 before District Court, Bijapur. Notice to petitioner dispensed with under Order XLI Rule 14 CPC (Karnataka Amendment). Appeal decreed on 18.7.2011 setting aside dismissal and decreeing suit. Petitioner filed application under Order IX Rule 13 CPC before appellate court to set aside appellate decree. Application dismissed as not maintainable on 4.9.2013 in Civil Misc.21/13. Petitioner filed civil revision petition under Section 115 CPC before High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 115, Order IX Rule 13, Order XLI Rule 14
