Case Note & Summary
The original appellant, G. Ratna Raj (since deceased, represented by legal representatives), filed a civil suit (C.S. No. 131/1999) in the High Court of Madras on its original side against Sri Muthukumarasamy Permanent Fund Ltd. (respondent No.1) and others, seeking redemption of mortgage and permanent injunction in relation to mortgaged property. The defendants entered appearance and filed written statements. Issues were framed, and the plaintiff examined himself as PW1 and was cross-examined by the defendants. The plaintiff then closed his case, and the matter was posted for defendants' evidence. At that stage, the defendants did not appear, and the court proceeded ex parte against them under Order 9 Rule 6(1)(a) CPC. The plaintiff was re-examined but could not be cross-examined due to the ex parte proceedings. The Trial Court (Single Judge) passed a preliminary decree on 25.02.2003. Subsequently, defendant No.1 filed two applications: IA No. 341/2006 under Order 9 Rule 13 CPC to set aside the preliminary decree, and IA No. 340/2006 for condonation of delay. The Single Judge dismissed both applications, holding that the preliminary decree was not an ex parte decree and thus Order 9 Rule 13 was not maintainable. Defendant No.1 appealed to the Division Bench, which allowed the appeals, set aside the Single Judge's order, and held that the preliminary decree was an ex parte decree, making the Order 9 Rule 13 application maintainable. The Division Bench allowed the application subject to payment of Rs. 10,000 costs to the plaintiff and restored the suit for disposal on merits. The plaintiff appealed to the Supreme Court. The Supreme Court dismissed the appeals, affirming the Division Bench's view. The Court analyzed Order 9 Rule 6(1)(a), Order 17 Rules 2 and 3, and the Explanation to Rule 2. It held that since the defendants were absent and the court proceeded under Order 17 Rule 2 (not Rule 3), the decree was ex parte. The Explanation to Rule 2, which allows the court to proceed as if the absent party were present when substantial evidence has been recorded, does not change the character of the decree as ex parte. The Court relied on B. Janakiramaiah Chetty vs. A.K. Parthasarthi (2003) 5 SCC 641 to distinguish between Rules 2 and 3. The appeals were dismissed with no order as to costs.
Headnote
A) Civil Procedure - Ex Parte Decree - Order 9 Rule 13 CPC - Maintainability - The court examined whether a preliminary decree passed after the defendants were proceeded ex parte under Order 9 Rule 6(1)(a) and the court proceeded under Order 17 Rule 2 (Explanation) could be set aside under Order 9 Rule 13. Held that such a decree is an ex parte decree and Order 9 Rule 13 application is maintainable (Paras 16-22). B) Civil Procedure - Order 17 Rule 2 vs Rule 3 CPC - Distinction - Rule 2 applies when parties fail to appear on adjourned hearing; Rule 3 applies when a party is present but defaults in producing evidence. The Explanation to Rule 2 allows the court to proceed as if the absent party were present if substantial evidence has been recorded. In this case, since the defendants were absent and the court proceeded under Rule 2, the decree was ex parte (Paras 19-22). C) Civil Procedure - B. Janakiramaiah Chetty vs. A.K. Parthasarthi - Precedent - The Supreme Court relied on this case to clarify the scope of Order 17 Rules 2 and 3, holding that when a party is absent and the court proceeds under Rule 2 (including its Explanation), the resulting decree is ex parte and amenable to Order 9 Rule 13 (Paras 22-23).
Issue of Consideration
Whether the preliminary decree dated 25.02.2003 was an 'ex parte decree' for the purpose of Order 9 Rule 13 of the Code of Civil Procedure, 1908, and whether the application under Order 9 Rule 13 was maintainable.
Final Decision
The Supreme Court dismissed the appeals, affirming the Division Bench's order that the preliminary decree was an ex parte decree and the application under Order 9 Rule 13 CPC was maintainable. The suit was restored for disposal on merits.
Law Points
- Order 9 Rule 13 CPC
- Order 17 Rule 2 CPC
- Order 17 Rule 3 CPC
- Ex parte decree
- Setting aside ex parte decree
- Redemption of mortgage
