Karnataka High Court: M. I. Arun J. dismissed the petition without interfering in the discretion exercised by the Appellate Court in the impugned judgment.
The facts of the case are that an original suit was filed before Additional Civil Judge, Senior Division, Kolar for a decree of partition and separate possession of 1/4th share in the suit schedule properties. The respondents in the original suit i.e. petitioners in the present writ petition entered appearance through their advocate but failed to file the written statement despite several opportunities being given, pursuant to which decree was granted in favour of the plaintiff in the original suit. The judgment was later challenged by a delay of 3 years (condoned by Court) by an appeal which was later prayed for dismissal. Thereafter petition under Order 9 Rule 13 of Code of Civil Procedure i.e. CPC was filed for setting aside the impugned decree and was later dismissed vide order dated 27-06-2011. The dismissal order was further challenged by an appeal which was allowed and the original suit was restored to file. Aggrieved by the said order, this revision petition has been preferred.
Counsel for the respondents submitted that the appearance in the original suit was entered through advocate alone and no written statement was filed or arguments were advanced, therefore they cannot be considered as ex parte and should not be entitled to prefer an application under Order 9 Rule 13 CPC.
Order 9 Rule 13 reads as under:
In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.
Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.
The Court observed that bare reading of the Explanation to Order 9 Rule 13 CPC makes it clear that when an appeal is preferred against the decree passed Exparte and when the same is disposed of, any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under Order 9 Rule 13 CPC for setting aside the Exparte decree. It means if the appeal has been disposed as withdrawal, in that event a petition under Order 9 Rule 13 CPC is maintainable. It is immaterial whether the appeal was withdrawn reserving the liberty to prefer an application under Order Rule 13 of CPC or not.
In view of the observations, Court held relied on judgment G. Ratna Raj v. Sri Muthukumarasamy Permanent Fund Ltd., (2019) 11 SCC 301 and held that when the defendants entered appearance but did not contest the case, it will be treated as Exparte and the defendants can maintain a petition under Order 9 Rule 13 CPC.
In view of the above, the revision petition was dismissed.[M. Krishnappa v. Menasamma, 2020 SCC OnLine Kar 1648, decided on 23-10-2020]
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