The High Court · 2025

petition under Section '151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay the ex-parte decree dated 27 11212022 in O S No. 21of 2O'l8passed by the Lrrned Senior Civil Judge Peddapally till the disposal of civrl revrsion petition in the interest of iustice and to Pass Counsel for the Petitioner: SRI P SATHWIK REDDY Counsel for the Respondents: SRI ADITYA MANDHANI The Court made the following: ORDER s; 3 HON'BLE SRI JUSTICE K. LAKSHMAN CIVIL REVISION PETITION No.l126 OF 2025 ORDER: Heard Sri P. Venugopal, leamed Senior Counsel representing Mr. P. Sathwik Reddy, learned counsel for the petitioners and Mr. Ghanshyamdas Mandhani, learned counsel representing Mr.Aditya Mandhani, learned counsel appearing for respondent No.l. With the consent of both the leamed counsel, this CRP is disposed of at the admission stage.

2. This Civil Revision Petition is filed under Article 227 of the Constitution of India, challenging the order dated 29.01.2025 passed in I.A. No. 433 of 2023 in O.S. No. 21 of 2018 by the leamed Senior Civil Judge - cum - Assistant Sessions Judge, at Peddapalli. \4de aforesaid order, leamed trial Court dismissed the application hled by the petitioners filed under Section 5 of the Limitation Act, 1963, to condone the delay of 186 days in filing an application under Order 9 Rule 13 of CPC to set aside the exparte judgment and decree dated 27 .12.2022. 4 \- \l l \ \ Facts of the Case:-

3. l't respondent/plaintiff had filed a suit in O.S.No.21 of 2018 against the petitioners and respondents 2 to 6 herein for partition, recovery of possession and also to declare registered documents as null and void. The said suit was decreed on

27.12.2022. It is an exparte decree. Therefore, the petitioners herein/defendants 6 to 9 filed an application under Section 5 of the Limitation Act, to condone the delay of 186 days from 28.01.2023 to 3l .07.2023 in filing an application under Order 9 Rule 13 of CPC to set aside the said judgment and decree passed in O.S.No.21 ol 2018.

4. l" respondent/plaintiff had hled counter opposing the said application contending that it is the duty. of the party to be vigilant in knowing the proceedings of the Court and contesting the matter. But the petitioners herein kept silent all these years under the guise of ill-health which clearly shows gross negligence on their part. Though there is service of notice on the Z"d petitioner herein /Defendant No.7 throughl't petitioner hereiddefendant No.6 and hqing knowledge of the proceedings, he did not approach the "\ 5 Court. Though the petitioners 3 and 4 herein/Defendant Nos.8 and 9 are having knowledge about service of summons though publication in Nava Telangana Daily Newspaper, Peddapally District Edition, they did not appear before the Court. The petitioner No.4 herein/9th defendant is residing in Hyderabad more than ten years and having knowledge of the publication of summons in the aforesaid daily newspaper.The summons sent to the defendant No.7 to 9 on the addresses mentioned in the gift deed, which was executed by the defendant No.6 in favour of the defendant No.7 to 9. Since all the petitioners herein did not appear before the Court, the trial Court vide order dated 27 .12.2022 passed an ex parte judgment and decree. The medical prescriptions and reports filed by the petitioner No. I /Defendant No.6 are false and created. Despite granting sufficient time by the trial Court, the petitioners herein failed to appear before the Court to contest the suit. Therefore, he sought to dismiss the petition.

5. Vide order dated 27.12.2022,leamed trial Court dismissed the application holding that the summons sent to the defendant No.7 to 9 on the addresses mentioned in the gift deed, which was 6 \ executed by the delendant No.6 in favour of the petitioners herein/defendant Nos.7 to 9. The case record clearll, reveals that in order to protract the suit, the petitioners herein/de lcndants 6 to 9 intentionally not filed rvritten statement and becomc exparte.They have not explained the delay properly etc.

6. Challenging the said order, the petitioners frted the present revlslon.

7. Sri P.Venugopal, leamed Senior counsel appearirrg for petitioners would contend that the suit is for partition and separate possession and also to declare the registered documents as null and

8. The said suit was decreed ex parte. I-herefore, the petitioners filed the aforesaid I.A.No.434 of 2024 to condone the delay of 186 days in filing an application under Order 9 Rule l3 of CPC to set aside the exparte judgment and decree bv explaining the reasons specifically. The same were not considered by the leamed trial Court. Paper publication was ordered in Nava -lelangana daily which is not having circulation. Therefore, the same is in violation of Order 5 Rule 20 of CPC. Mthout considering the said 7 aspects, leamed trial Court dismissed the said application vide impugned order dated 29.01 .ZOZ5 .

9. Whereas, Sri Ghanshyamdas Mandhani, leamed counsel appearing for respondent No.l would contend that the present revision filed by the petitioners is not maintainable. The petitioners have to prefer an appeal under Order 43 of CpC challenging the impugned order. He has also placed reliance on the principle taid down by the Apex Court in Koushik Mutually Aided Cooperative Housing Sociefy vs. Ameena Begumr.

10. In the light of the said submission, this Court has to decide with regard to the maintainability of the present revision at the first place. I l. As discussed supra, the aforesaid suit is for partition and separate posseSsion and to declare the registered sale deeds as null and void. The petitioners herein and respondents 2 to 6 were set exparte. Learned trial Court decreed the said suit exparte. Thereafter, the petitioners herein/defendants 6 to 9 filed I.A.No.433 of 2023 in O.S.No.2l of 20lg under Section 5 of the Limitation 'zozr\ontine sc 1662 f 8 Act, 1963 to condone the delay of 186 days in filing an application to set aside the ex parte judgment and decree under Order 9 Rule 13 otCPC.

12. When the said suit is decreed ex parte, the defendants will have the lotlowing options:-

1. Filing of an application under Order 9 Rule 13 of CPC to set aside the exparte iudgment and decree, 2. Prefer an appeal under Section 96 ofCPC In the present case, the petitioners/defendants 6 to 9 filed an application under Order 9 Rule 13 of CPC to set aside the ex parte judgment and decree. Since there is delay, they have also filed an application under Section 5 of the Limitation Act 1o condone the delay of 186 days in filing the said application.'Ihe same was dismissed. Chaltenging the said order, the petitioners filed the present revision.

13. During the course of hearing, it is brought to the notice of this Court that in view of the dismissal of the petition filed under Section 5 of the Limitation Act to condone the delay, leamed trial t 9 Court also rejected an application filed under Order 9 Rule 13 CPC

14. In Thambi vs. Mathew2, the Full Bench of Kerala High Cour1, ref'erring to the relevant decisions on the above question, held that an appeal presented out of time is nevertheless, an appeal in the eye of law for all practical purposes and order dismissing the appeal was a decree that could be subject of second appeal. It was also held that Rule 3 (A) of Order 41 introduced by the Amendment AcL, 1976 to the Code, does not in any way affect the principle. An appeal registered under Rule 9 of Order 4l CPC is to be disposed of according to law and a dismissal of the appeal for the reason of delay in its presentation after the dismissal of an application for condonation of delay is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on the survey of authorities is that an appeal filed along with the application for condonation of delay in filing that appeal when dismissed and the refusal to condone delay is nevertheless of decision in appeal '1987 SCC OnLine Ker 1999 I 10

15. The Three Judge Bench ofApex Court in Shyam Sundar Sharma vs. Pannolal Jtiswal & Orsr held as follow,s:-

13. .... legislative intent incorporated in the explanation to Order IX Rule l3 of the Code was to confine the defendanl to a single course ofaclion and to discouragc the prolonging ofthe litigation on the ex parte decree, namely, by preferring an application to the trial couft under Order IX Rute l3 of the Code for setting aside thc decree and by filing an appeal ro a superior court against it. If he did not withdraw the appcal filed by him or allowed thc appeal to be disposcd of on any other ground, he was denied the right to apply under Order IX Rule 13 oi the Code. The Court also clarified that by the introduction of the explanation, the area ol operation of the doctrinc of merger was enormously extended. tly virtue of the explanation, the disposal ol the appeal on any gr.ound whatever, apart lrom its withdrawal, constituted sufficient rcason for bringing the ban into operation. In the light of this, it was held that though in that case the appeal filed by the husband against thc ex parte decree was dismissed on the ground of it being barred by Iimitation, it was a disposal of the appeal and the pctition under Order IX Rule l3 of the Code was hit by the explanation. In P. Kiran Kunrar vs. A.S. Kladar and others [(2002) 5 SCC 161] this Court followed the decision in Rani Choudhury (supra) and held that the dismissal of the appeal against an cx partc dccree as barred by limitation, preventcd the trial court which passed the ex parle decree, from exercising its power under Order IX Rule 13 of the Code in view of the explanation.

16. Rcfening to the atbresaid Full Bench judgment, Kerala High Court and other High Courts held that dismissal of an appeal which is dismissed for default or as barred by limitation because of the dismissal of the application lor condoning the clelay in filing the same, should be treated on a par with the non-filing of an \ 32004 scc oh$ne sc 1409 = (2005) 1 scc 436 1,1, appeal or the withdrawal of an appeal, cannot be accepted. Merely because, there is no merger of the decree of the trial Court in that of the appellate Court does not imply that the said explanation would not be applicable.

17. In a decision of this Court in pingte Naresh Reddy vs. Pingle Sila Reddy & Orsa, the plaintiff filed a suit for partition and separate possession and the same was decreed ex parte. Thereafter, the defendant No.2 had filed two Interlocutory Applications i.e. application under Section 5 of the Limitation Act, 1963, to condone the delay in filing an application under Order 9 Rule 13 of CPC to set aside the ex parte preliminary decree. Both the applications were dismissed vide common order. Challenging the same, the detbndant No.2 herein filed two revisions. In the said revisions, the plaintiff took an objection with regard to maintainability of the revisions, this Court held that rejection of an application under Order 9 Rule 13 of CpC is an appealable order under Order 43 Rule 1(B) of the CpC, the impugned common order therein in its entirety is appealable. Such an order cannot be "MAN u/TV0531/2023 G I 12 \ served with two independently decided applications filed under Section 5 of the Limitation Act,, 1963 as it would result in delivering a judgment tn appeal. Thus, this Court held that revisions are not maintainable.

18. In Koushik Mutually Aided Cooperative Housing Society (supra), paragraph Nos. t3 to 20 are relevant and the same are extracted below:-

13. As against the ex-parte decree, a defcndant has three remedies available to him. First, is by way of filing an application under Order IX Rule l3 CPC seeking for setting aside ex-parte decree; the second, is by way of fi ling an appeal against rhe ex-parte decree undcr Section 96(2) of the CPC and the third, is by way of review before the same court against the ex-parte decree.

14. The fiting of an application undcr Order IX Rute 13 CpC as well as the h ling of appeal under Section 96(2) olthe CPC against the ex-parte decree are concurrent remedies available to a defendant. llowcver, once the appeal preferred by thc defendant against the ex-parte decree is dismissed, except when it is withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued. Conversely, if an application fi led under Order IX Rule 13 CPC is rejected, an appeal as against the ex- parte decree can be preferred and continued under Section 96(2) of the CPC. Thus, an appeal against an ex-parte decree even after the dismissal of an application under Order IX Rule l3 CPC is maintainable.

15. In Bhanu Kumar Jain vs. Archana Kumar, AIR 2005 SC 626: (2005) I SCC 787, speaking through Sinha, J. observed in paragraph 26 as under: "When an ex parte decree is passed, the defendant (apart from fi ling a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to fi le an appeal and another to fi le an application for setting aside lhe order in terms of Order IX Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the triat court merges with the order passed by the appellate coun, having regard to Explanation L3 appended to Order IX Rule 13 of the Code a petition under Order IX Rule 13 would not be maintainable. However, the Explanation I appended to the said provision does not suggest that the converse is also true."

16. Against the order passed under Order IX Rule 13 CPC rejecting an application for seeking setting aside the decree passed ex-parte, an appeal is provided. When an application is fi led seeking condonation of delay lor seeking setting aside an ex-parte decree and the same is dismissed and consequently, the petition is also dismissed, the appeal under Order XLIII Rute l(d) CPC is maintainable. Thus, an appeal only against the refusal to set aside the ex-parte decree is maintainable whereas if an order allowing such an application is passed, the same is not appealable.

17. Thus, r.r,hen an application or petition fi led under Order IX Rule l3 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule I CPC. Thus, Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed. Thus, when an altemative and eflcctive appellate remedy is available to a defendant, against an ex-pafte decree, it would not be appropriate for the defendant to resort to fi ling of revision under Section 115 of the CPC challenging the order refusing to set aside the order of setting the defendant ex-parte. In view of the appellate remedy under Order XLIII Rule l(d) CPC being available, revision under Section 115 ofthe CPC fi led in the instant case was not maintainable.

18. When there is an express provision available under the CPC or any statute undcr which an appeal is maintainable, by-passing the same,a Revision Petition cannot be fi led. It is needless to observe that in the absence of an appellate remedy, a revision may be maintainable.

19. It is clarified that once the Trial Court dismissed the application seeking condonation ofdelay in fi ling petition under Order IX Rule 13 CPC, and consequently, the main petition under Order IX Rule 13 CPC also stood dismissed which is also noted by the trial Court as "In the result, the petition is dismissed".

20. Realising this aspect regarding the maintainability of a revision petition before the I{igh Court, Sri SajanPoovayya, leamed senior counsel submitted that liberty may be reserved to the first respondent herein to fi le an appeal and if such an appeal is filed within a time frame to be granted by this Court, the issue of limitation in filing the appeal under Order XLIII Rule 1(d) CPC may not be raibed by the High Court. & a l I i t4

19. In the light of the principle laid down in the aforesaid judgments, coming to the facts of the present case on hand, as discussed supra, in the present case also, the petition ers/defendants 6 to 9 were set ex parte and suit was decreed ex parte. Therefore, they have hled an application under Section 5 of the Limitation Act, to condone the delay of 186 days in filing an application under Order 9 Ruie 13 of CPC to set aside the ex parte judgment and decree. The same was dismissed. Challenging the said order, the petitioners filed the present revision

20. As discussed supra, during the cource o1- hearing, it is brought to the notice of this Court that in view of the dismissal of the application filed under Section 5 of the Limitation act, the trial Court also rejected the application filed by the petitioners under Order 9 Rule 13 of the CPC to set aside the exparte decree. Thus, order of the trial Court passed in an application filed under Section 5 of the Limitation, is merged with the order passed by the trial Court in an application filed under Order 9 Rule 13 of CPC. Therefore, the petitioners have to prefer an appeal under the terms of Order 43 Rule l(d) of CPC 15 21 . In the light aforesaid discussion, this revision is dismissed as not maintainable. However, liberty is granted to the I petitioners to avail remedy of appeal in terms of Order 43 Rule l(d) of C,P.C. As a sequel thereto, miscellaneous petitions, if any, pending in the revision shalI stand closed. //TRUE COPY// SD/. MOHD. ISMAIL DEPUW REGISTRAR SECTION OFFICER To, 1 2 J 4 Learned Senior Civil Judge at Peddapally. One CC to SRI P SATHWIK REDDY, Advocate IOPUC] One CC to SRI ADITYA MANDHANI, Advocate [OPUCI Two CD CoPies SS/gh t t { HIGH COURT DATED:09106t2025 t) o 1HE S ( ...\ 27JU$l M ,ir t 9t SoAT r-. \ ic-0 i ORDER CRP.No.1126 ot 2025 DISMISSING THE C.R.P. AS NOT MAINTAINABLE I @,n1 b {