Case Overview
- Court: Supreme Court of India
- Civil Appeal No.: Special Leave Petition (C) No. 5489 of 2021
- Appellant: The Koushik Mutually Aided Cooperative Housing Society
- Respondents: Ameena Begum & Another
- Judges: Justices B.V. Nagarathna and Ujjal Bhuyan
- Judgement Dated: 01-12-2023
Key Facts
Background of the Case:
- The appellant filed a suit (O.S. No. 1144/1988) seeking a decree for specific performance of an agreement to sell dated 26.04.1985.
- The respondents were set ex-parte, and an ex-parte decree was passed on 15.02.1999.
Proceedings After Ex-Parte Decree:
- The first respondent filed an application on 07.01.2016 to set aside the ex-parte decree, along with an application under Section 5 of the Limitation Act, seeking condonation for a delay of 5,767 days.
- The Trial Court dismissed the application for condonation of delay and consequently dismissed the petition to set aside the ex-parte decree.
High Court Decision:
- The first respondent filed a Civil Revision Petition under Section 115 of the CPC against the dismissal by the Trial Court.
- The High Court condoned the delay of 5,767 days and directed the Trial Court to dispose of the petition expeditiously.
Supreme Court Observations and Ruling:
- The Supreme Court noted that an appeal, rather than a revision, should have been filed against the order under Order IX Rule 13 CPC.
- The Court clarified that the rejection of an application under Order IX Rule 13 CPC is appealable under Order XLIII Rule 1(d) CPC.
- The Court set aside the High Court's order on the grounds of maintainability and granted liberty to the first respondent to file an appeal under Order XLIII Rule 1(d) CPC by 31.12.2023, without raising the issue of limitation.
Conclusion:
- The appeal was allowed, and the High Court was directed to dispose of the appeal in accordance with the law, ensuring no prejudice to either party.
Legal Implications
- Alternative Remedies Available to Defendants: The Supreme Court reiterated that a defendant has three options to challenge an ex-parte decree: an application under Order IX Rule 13 CPC, an appeal under Section 96(2) of the CPC, or a review petition.
- Clarification on Revision Petitions: The Court clarified that when an appeal remedy is explicitly provided under CPC, a revision petition under Section 115 CPC is not maintainable.