Case Note & Summary
The Supreme Court allowed the appeal filed by the defendant-appellant against the order of the Madras High Court refusing to condone the delay of 546 days in filing the first appeal against an ex-parte decree. The background of the case involves a suit for recovery of Rs.45,00,000/- filed by the respondent-plaintiff, which was decreed ex-parte on 09.10.2015. The appellant-defendant, a businessman, claimed that he was not served with summons as he was residing in Chennai since January 2014, while the summons were sent to his old address in Trichy. He filed an application under Order IX Rule 13 CPC to set aside the ex-parte decree, along with an application under Section 5 of the Limitation Act to condone the delay of 276 days. The trial court dismissed the application, and the High Court and Supreme Court upheld that dismissal. Thereafter, the appellant filed a first appeal under Section 96(2) CPC challenging the ex-parte decree, along with an application to condone the delay of 546 days. The High Court dismissed the condonation application on the ground that the same reasons had been rejected in the earlier proceedings. The Supreme Court framed two issues: (1) whether the first appeal is maintainable despite dismissal of the Order IX Rule 13 application, and (2) whether the time spent in the earlier proceedings constitutes sufficient cause for condonation of delay. The Court held that the right to appeal under Section 96(2) CPC is a statutory right and is not barred by the dismissal of the Order IX Rule 13 application, as the scope of the two remedies is different. The Court further held that the time spent by the appellant in bona fide pursuing the remedy under Order IX Rule 13 CPC should be considered as sufficient cause for condoning the delay in filing the appeal. Accordingly, the Supreme Court set aside the High Court's order, condoned the delay, and directed the High Court to hear the first appeal on merits.
Headnote
A) Civil Procedure - Ex-parte Decree - Remedies Available - Order IX Rule 13 CPC and Section 96(2) CPC - When an ex-parte decree is passed, the defendant has two remedies: (a) file an application under Order IX Rule 13 CPC to set aside the ex-parte decree, or (b) file a regular appeal under Section 96(2) CPC challenging the decree on merits. The right to appeal is a statutory right and cannot be deprived merely because the application under Order IX Rule 13 CPC was dismissed. (Paras 9-10) B) Civil Procedure - Appeal - Maintainability - Section 96(2) CPC - Dismissal of Order IX Rule 13 application does not bar filing of first appeal under Section 96(2) CPC. The scope of the two remedies is entirely different; the appeal allows the appellate court to go into the merits of the decree, while Order IX Rule 13 is limited to service of summons and sufficient cause for non-appearance. (Paras 11-13) C) Limitation Act - Condonation of Delay - Sufficient Cause - Section 5 - Time spent in bona fide proceedings for setting aside ex-parte decree can constitute sufficient cause for condoning delay in filing the first appeal. The appellant pursued the remedy under Order IX Rule 13 CPC in good faith, and the time spent in those proceedings should be excluded while considering the delay in filing the appeal. (Paras 14-15)
Issue of Consideration
(i) After dismissal of the application filed under Order IX Rule 13 CPC for condonation of delay in filing the appeal, whether the appeal filed under Section 96(2) CPC against the ex-parte decree is maintainable? (ii) Whether the time spent in the proceedings to set aside the ex-parte decree be taken as 'sufficient cause' within the meaning of Section 5 of the Limitation Act, 1908 so as to condone the delay in preferring the first appeal?
Final Decision
The Supreme Court allowed the appeal, set aside the impugned order of the High Court dated 24.04.2018, condoned the delay of 546 days in filing the first appeal, and directed the High Court to hear the first appeal on merits in accordance with law.
Law Points
- Right to appeal under Section 96(2) CPC is a statutory right
- not barred by dismissal of Order IX Rule 13 application
- Time spent in bona fide proceedings for setting aside ex-parte decree can constitute sufficient cause for condonation of delay under Section 5 of Limitation Act
