Case Note & Summary
The appellant, B.A. Viswanath, filed a suit (O.S.2699/2004) against the respondent, Smt. Govindamma, seeking declaration and cancellation of a gift deed dated 13.06.2003. The suit was decreed ex parte on 28.07.2009. The respondent filed a petition under Order IX Rule 13 read with Sections 141 and 151 of the Code of Civil Procedure, 1908 (CPC) in Misc. No.87/2010 to set aside the ex parte decree. The trial court allowed the petition on 11.09.2013, setting aside the decree and restoring the suit to file on payment of costs of Rs.2,000. The appellant challenged this order in the High Court. The High Court noted that the petition under Order IX Rule 13 CPC was filed beyond the period of limitation and the respondent did not file any application under Section 5 of the Limitation Act, 1963 to condone the delay. The respondent also failed to show sufficient cause for her absence on the date of hearing. The High Court held that the trial court erred in allowing the petition without considering the limitation issue and without proper explanation for the delay. Consequently, the High Court allowed the appeal, set aside the trial court's order, and dismissed the petition under Order IX Rule 13 CPC.
Headnote
A) Civil Procedure Code - Setting Aside Ex Parte Decree - Order IX Rule 13 CPC - Limitation - Sufficient Cause - The defendant filed a petition under Order IX Rule 13 CPC to set aside an ex parte decree passed in O.S.2699/2004. The petition was filed beyond the period of limitation and the defendant failed to show sufficient cause for her absence. The trial court allowed the petition, but the High Court held that the delay was not properly explained and the defendant had not made out a case for setting aside the ex parte decree. (Paras 1-5)
B) Civil Procedure Code - Inherent Powers - Section 151 CPC - The trial court invoked Section 151 CPC to condone the delay in filing the petition under Order IX Rule 13 CPC. The High Court held that inherent powers cannot be used to circumvent the provisions of the Limitation Act, 1963, and that the delay must be explained with sufficient cause. (Paras 4-5)
C) Limitation Act - Application to Set Aside Ex Parte Decree - Section 5 of Limitation Act, 1963 - The application under Order IX Rule 13 CPC was filed beyond the prescribed period of limitation. The defendant did not file any application under Section 5 of the Limitation Act to condone the delay. The High Court held that without such an application, the trial court could not have entertained the petition. (Paras 4-5)
Issue of Consideration
Whether the trial court was justified in allowing the petition under Order IX Rule 13 CPC to set aside the ex parte decree when the application was filed beyond the period of limitation and without sufficient cause.
Final Decision
The High Court allowed the appeal, set aside the order dated 11.09.2013 passed by the VII Additional City Civil Judge, Bangalore in Misc. No.87/2010, and dismissed the petition filed under Order IX Rule 13 read with Sections 141 and 151 of CPC.
Law Points
- Order IX Rule 13 CPC
- Section 5 of Limitation Act
- 1963
- Sufficient cause for setting aside ex parte decree
- Limitation for filing application to set aside ex parte decree
- Inherent powers under Section 151 CPC
Case Details
2013 LawText (KAR) (12) 11
Sri.C.G.Gopalaswamy for appellant, Sri.V.Prabhakar for respondent
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Appeal against order allowing petition to set aside ex parte decree in a suit for declaration and cancellation of gift deed.
Remedy Sought
Appellant sought setting aside of the trial court's order allowing the respondent's petition under Order IX Rule 13 CPC.
Filing Reason
The trial court allowed the respondent's petition to set aside the ex parte decree, which the appellant challenged as being beyond limitation and without sufficient cause.
Previous Decisions
The trial court in Misc. No.87/2010 allowed the petition under Order IX Rule 13 CPC, setting aside the ex parte decree dated 28.07.2009 in O.S.2699/2004 and restoring the suit to file on payment of costs of Rs.2,000.
Issues
Whether the petition under Order IX Rule 13 CPC was filed within the period of limitation?
Whether the respondent showed sufficient cause for her absence on the date of hearing?
Whether the trial court could invoke Section 151 CPC to condone the delay without an application under Section 5 of the Limitation Act?
Submissions/Arguments
Appellant argued that the petition under Order IX Rule 13 CPC was filed beyond limitation and no sufficient cause was shown for the absence.
Respondent argued that the trial court correctly exercised its discretion in allowing the petition.
Ratio Decidendi
A petition under Order IX Rule 13 CPC to set aside an ex parte decree must be filed within the period of limitation prescribed by the Limitation Act, 1963. If filed beyond limitation, the petitioner must file an application under Section 5 of the Limitation Act to condone the delay and show sufficient cause for the absence. The inherent powers under Section 151 CPC cannot be used to circumvent the limitation provisions. In this case, the respondent failed to file any application for condonation of delay and did not show sufficient cause for her absence, hence the trial court erred in allowing the petition.
Judgment Excerpts
This is plaintiff’s appeal questioning the order passed by VII Additional City Civil Judge, Bangalore dated 11.09.2013 in Misc. No.87/2010 whereunder petition filed by defendant under Order IX Rule 13 read with sections 141 and 151 of C.P.C has been allowed and Judgment and decree passed in O.S.2699/2004 on 28.07.2009 decreeing the suit has been set aside and suit has been restored to file on payment of cost of ` 2,000/- payable by defendant/petitioner to respondent-plaintiff.
I have heard the arguments of Sri.C.G.Gopalaswamy, learned counsel appearing for petitioner and Sri.B.Prabhakar, learned counsel appearing for respondent and perused the records of trial court.
Procedural History
The appellant filed O.S.2699/2004 for declaration and cancellation of a gift deed. The suit was decreed ex parte on 28.07.2009. The respondent filed Misc. No.87/2010 under Order IX Rule 13 read with Sections 141 and 151 CPC to set aside the ex parte decree. The trial court allowed the petition on 11.09.2013. The appellant filed M.F.A.No.9169/2013 under Order 43 Rule 1(c) CPC against that order. The High Court heard the appeal and delivered judgment on 18.12.2013.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order IX Rule 13, Order 43 Rule 1(c), Sections 141, 151
- Limitation Act, 1963: Section 5
