Case Note & Summary
The petitioners, Nagananda and K.R. Hanumantha Raju, filed a writ petition under Article 227 of the Constitution of India challenging the order dated 20.09.2012 passed by the II Additional Senior Civil Judge, Mysore, in Miscellaneous Case No. 29/2012, which dismissed their application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) to set aside an ex-parte decree passed in O.S. No. 119/2005. The suit was for partition and separate possession filed by the respondents against the petitioners. The trial court had decreed the suit ex-parte on 30.04.2012. The petitioners filed an application to set aside the ex-parte decree, which was dismissed by the impugned order. The petitioners then approached the High Court under Article 227, contending that the trial court erred in dismissing their application. The respondents argued that the writ petition was not maintainable as the petitioners had an alternative remedy of revision under Section 115 CPC. The High Court examined the scope of Order XLIII Rule 1(d) CPC, which lists appealable orders. It noted that the provision only allows an appeal against an order granting an application to set aside a decree, not against an order refusing such an application. Therefore, the impugned order was not appealable. However, the court held that the order was revisable under Section 115 CPC. The High Court observed that the petitioners had an efficacious alternative remedy of revision and that the writ jurisdiction under Article 227 should not be used to bypass statutory remedies. The court found no perversity or lack of jurisdiction in the trial court's order to warrant interference under Article 227. Consequently, the writ petition was dismissed, leaving the petitioners free to pursue a revision petition under Section 115 CPC.
Headnote
A) Civil Procedure - Appealable Orders - Order XLIII Rule 1(d) CPC - Order refusing to set aside ex-parte decree is not appealable under Order XLIII Rule 1(d) CPC as the said provision only applies to orders granting an application to set aside a decree, not refusing it. (Para 6) B) Civil Procedure - Revision - Section 115 CPC - An order refusing to set aside an ex-parte decree is revisable under Section 115 CPC, and the High Court should not entertain a writ petition under Article 227 when an alternative remedy of revision is available. (Para 7) C) Constitutional Law - Writ Jurisdiction - Article 227 - The High Court cannot exercise its supervisory jurisdiction under Article 227 to circumvent the statutory remedy of revision under Section 115 CPC, especially when the order is not perverse or without jurisdiction. (Para 7)
Issue of Consideration
Whether an order refusing to set aside an ex-parte decree is appealable under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908, and whether the High Court can entertain a writ petition under Article 227 of the Constitution of India when the petitioners have an alternative remedy of revision under Section 115 CPC.
Final Decision
The High Court dismissed the writ petition, holding that the order refusing to set aside an ex-parte decree is not appealable under Order XLIII Rule 1(d) CPC, but the petitioners have an alternative remedy of revision under Section 115 CPC. The court declined to exercise its writ jurisdiction under Article 227 as the impugned order was not perverse or without jurisdiction. The petitioners were given liberty to file a revision petition under Section 115 CPC.
Law Points
- Order XLIII Rule 1(d) CPC
- Section 115 CPC
- Article 227 of the Constitution of India
- Ex-parte decree
- Setting aside ex-parte decree
- Appealable orders
- Revision
- Writ jurisdiction
- Alternative remedy
