High Court of Karnataka Dismisses Miscellaneous Second Appeal in Property Suit — Upholds Appellate Court's Reversal of Ex-Parte Decree. Restoration of Suit Ordered as Defendants Failed to Show Sufficient Cause for Non-Appearance Under Order 9 Rule 13 CPC.

High Court: Karnataka High Court Bench: BENGALURU

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2026-05-18 12:17:05

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Case Note & Summary

The present Miscellaneous Second Appeal was filed by the appellants, who were the defendants in the original suit, challenging the judgment and decree dated 27.02.2024 passed by the VI Additional District and Sessions Judge, Tumkuru, in R.A.No.04/2023. The lower appellate court had allowed the appeal filed by the respondents (plaintiffs) and set aside the ex-parte decree dated 16.11.2022 passed by the trial court, thereby restoring the suit to its original file. The appellants contended that the appellate court erred in setting aside the ex-parte decree without sufficient cause. The respondents argued that the defendants had failed to appear despite service and that the ex-parte decree was rightly set aside as the defendants had shown sufficient cause. The High Court examined the records and found that the appellate court had correctly appreciated the evidence and concluded that the defendants had sufficient cause for non-appearance, as they were under a bona fide belief that the matter was settled. The High Court held that no substantial question of law arose for consideration in this second appeal, as the findings of the appellate court were based on facts and did not suffer from any perversity. Consequently, the appeal was dismissed, and the order of the appellate court restoring the suit was upheld. The High Court directed the trial court to dispose of the suit expeditiously, preferably within six months.

Headnote

A) Civil Procedure - Ex-parte Decree - Setting Aside - Order 9 Rule 13 CPC - Sufficient Cause - The appellate court set aside an ex-parte decree and restored the suit, finding that the defendants had sufficient cause for non-appearance. The High Court held that the appellate court's decision was based on proper appreciation of evidence and did not warrant interference in a second appeal. (Paras 1-10)

B) Civil Procedure - Second Appeal - Maintainability - Order 43 Rule 1(u) CPC - The High Court held that a second appeal under Order 43 Rule 1(u) CPC lies only against an appellate decree passed under Order 43 Rule 1. Since the appeal before the lower appellate court was under Order 43 Rule 1(d) against an ex-parte decree, the second appeal was maintainable. (Paras 1-10)

C) Civil Procedure - Ex-parte Decree - Restoration - Order 9 Rule 13 CPC - The court held that the defendants had shown sufficient cause for their non-appearance, as they were under the bona fide belief that the suit was settled. The appellate court's order restoring the suit was upheld. (Paras 1-10)

Issue of Consideration

Whether the appellate court was justified in setting aside the ex-parte decree and restoring the suit, and whether the second appeal under Order 43 Rule 1(u) CPC is maintainable.

Final Decision

The High Court dismissed the Miscellaneous Second Appeal, upholding the judgment and decree of the lower appellate court dated 27.02.2024 in R.A.No.04/2023, which set aside the ex-parte decree and restored the suit. No order as to costs.

Law Points

Order 9 Rule 13 CPC
Order 43 Rule 1(u) CPC
Sufficient cause for setting aside ex-parte decree
Scope of second appeal under Section 100 CPC

Case Details

NC: 2024:KHC:42841

Miscellaneous Second Appeal No.69 of 2024 (RO)

2024-10-24

Hanchate Sanjeevkumar

NC: 2024:KHC:42841

Sri. Manu Shankar S S., Sri. Adaveeshaiah B., Sri. Rajendra K.R. AGA

Sri. G. Mahadevaiah, Smt. Rathnamma, Sri. H. S. Manjunath, Sri. Siddaramaiah, Sri Nandish

Smt. Parvathamma, Sri. H.N. Gangadhar, Smt. Vijaya, Sri. H. N. Kumaraswamy, Smt. Rudramma, The Executive Engineer, The Thasildhar

Nature of Litigation

Civil suit for property dispute leading to ex-parte decree and subsequent appeal for setting aside the ex-parte decree.

Remedy Sought

The appellants (defendants) sought to challenge the appellate court's order setting aside the ex-parte decree and restoring the suit.

Filing Reason

The appellants filed the second appeal against the judgment of the lower appellate court which allowed the respondents' appeal and set aside the ex-parte decree.

Previous Decisions

The trial court had passed an ex-parte decree on 16.11.2022. The lower appellate court in R.A.No.04/2023 set aside that decree and restored the suit on 27.02.2024.

Issues

Whether the appellate court was justified in setting aside the ex-parte decree and restoring the suit. Whether the second appeal under Order 43 Rule 1(u) CPC is maintainable.

Submissions/Arguments

Appellants argued that the appellate court erred in setting aside the ex-parte decree without sufficient cause. Respondents argued that the defendants had sufficient cause for non-appearance and the appellate court correctly restored the suit.

Ratio Decidendi

The appellate court's decision to set aside an ex-parte decree under Order 9 Rule 13 CPC is a discretionary order based on facts. In a second appeal under Order 43 Rule 1(u) CPC, the High Court will not interfere unless there is a substantial question of law. Here, the appellate court's finding of sufficient cause was based on evidence and was not perverse, hence no interference.

Judgment Excerpts

This Miscellaneous Second Appeal is filed by the appellants - defendants challenging the judgment and decree dated 27.02.2024 passed in R.A.No.04/2023 by the VI Additional District and Sessions Judge, Tumkuru, allowing the appeal and setting aside the judgment and decree dated 16.11.2022. The appellate court has rightly appreciated the evidence on record and has come to the conclusion that the defendants have shown sufficient cause for their non-appearance. No substantial question of law arises for consideration in this appeal.

Procedural History

The trial court passed an ex-parte decree on 16.11.2022. The respondents (plaintiffs) filed an appeal under Order 43 Rule 1(d) CPC before the VI Additional District and Sessions Judge, Tumkuru, which was allowed on 27.02.2024, setting aside the ex-parte decree and restoring the suit. The appellants (defendants) then filed the present Miscellaneous Second Appeal under Order 43 Rule 1(u) CPC before the High Court of Karnataka.