Supreme Court Clarifies Maintainability of Revision Petition against Order IX Rule 13 CPC: The Koushik Mutually Aided Cooperative Housing Society vs. Ameena Begum (2023) INSC 1065

Date of the Judgment: 01 December 2023
Citation: 2023 INSC 1065
Judges: Justice B.V. Nagarathna and Justice Ujjal Bhuyan
Can a revision petition be filed before the High Court against an order of the Trial Court dismissing an application for setting aside an ex-parte decree? The Supreme Court addressed this crucial question regarding the maintainability of revision petitions under Section 115 of the Code of Civil Procedure (CPC) when an appeal is available under Order XLIII Rule 1(d) CPC. The Court clarified that when an appeal is available, a revision petition is not maintainable. This judgment was delivered by a bench comprising Justice B.V. Nagarathna and Justice Ujjal Bhuyan.

Case Background

The Koushik Mutually Aided Cooperative Housing Society (the appellant) filed a suit (O.S. No. 1144/1988) in the City Civil Court, Hyderabad, seeking specific performance of an agreement to sell dated April 26, 1985. The respondents were set ex-parte, and an ex-parte decree was passed on February 15, 1999. The first respondent, Ameena Begum, filed an application on January 7, 2016, to set aside the ex-parte decree, along with an application under Section 5 of the Limitation Act, 1963, seeking condonation of 5767 days’ delay. The Trial Court dismissed the delay condonation application on June 7, 2018, and consequently dismissed the application to set aside the ex-parte decree.

Timeline

Course of Proceedings

The first respondent filed a Civil Revision Petition before the High Court of Telangana, challenging the Trial Court’s order. The High Court set aside the Trial Court’s order and condoned the delay, directing the Trial Court to dispose of the petition to set aside the ex-parte decree within four months. The appellant then appealed to the Supreme Court.

Legal Framework

The Supreme Court examined the provisions of Order XLIII Rule 1(d) and Section 115 of the Code of Civil Procedure, 1908 (CPC). Order XLIII Rule 1(d) CPC states:

“Order XLIII Rule 1. Appeal from orders – A n appeal shall lie from the following orders under the provisions of section 104, namely:-
(a) xxx
(c) xxx
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex-parte.”

Section 115 of the CPC outlines the conditions under which the High Court may exercise its revisional jurisdiction:

“Section 115 – Revision .
(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation.—In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.”

Arguments

Appellant’s Submissions:

• The appellant argued that the High Court’s order was incorrect as a Civil Revision Petition under Section 115 of the CPC is not maintainable when an appeal is available under Order XLIII Rule 1(d) CPC.
• The appellant contended that the Trial Court’s order dismissing the application for condonation of delay and the subsequent dismissal of the application to set aside the ex-parte decree were appealable orders.

Respondent’s Submissions:

• The respondent argued that the High Court was correct in setting aside the Trial Court’s order and condoning the delay.
• The respondent requested that if the Supreme Court were to set aside the High Court’s order, liberty should be granted to file an appeal against the Trial Court’s order, and the issue of limitation should not be raised.

Issues Framed by the Supreme Court

1. Whether a Civil Revision Petition under Section 115 of the CPC is maintainable against an order passed by the Trial Court dismissing an application seeking condonation of delay in filing a petition under Order IX Rule 13 CPC, and consequently dismissing the said petition?

Treatment of the Issue by the Court

Authorities

The Court considered the following authorities:

• Bhanu Kumar Jain vs. Archana Kumar, AIR 2005 SC 626 : (2005) 1 SCC 787 – The Supreme Court in this case discussed the remedies available to a defendant against an ex-parte decree, including filing an application under Order IX Rule 13 CPC and an appeal under Section 96(2) of the CPC. It was clarified that these are concurrent remedies, but if an appeal is dismissed, the remedy under Order IX Rule 13 CPC cannot be pursued.

The Court also considered the following legal provisions:

• Order XLIII Rule 1(d) CPC – This provision allows for an appeal against an order under Order IX Rule 13 rejecting an application to set aside a decree passed ex-parte.
• Section 115 of the CPC – This provision outlines the conditions under which the High Court may exercise its revisional jurisdiction, which is not applicable when an appeal is available.
• Section 96(2) of the CPC – This provision allows for an appeal against an ex-parte decree.

Judgment

How each authority was viewed by the Court?

• The Supreme Court followed the ratio in Bhanu Kumar Jain vs. Archana Kumar, AIR 2005 SC 626 : (2005) 1 SCC 787* regarding the concurrent remedies available to a defendant against an ex-parte decree.
• The Court applied Order XLIII Rule 1(d) CPC* to determine that an appeal was the appropriate remedy.
• The Court interpreted Section 115 of the CPC* to mean that a revision petition is not maintainable when an appeal is available.
• The Court referred to Section 96(2) of the CPC* to highlight the availability of an appeal against an ex-parte decree.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the procedural framework laid out in the Code of Civil Procedure, 1908. The Court emphasized the importance of adhering to the specific remedies provided by law. The availability of an appeal under Order XLIII Rule 1(d) CPC was the decisive factor in determining the non-maintainability of the revision petition. The Court also considered the need to ensure that parties are not prejudiced by procedural errors, which led to the decision to grant the respondent the opportunity to file an appeal without the issue of limitation being raised.

The Court’s reasoning was straightforward and focused on the specific provisions of the CPC. It noted that an appeal is expressly provided under Order XLIII Rule 1(d) CPC against an order rejecting an application under Order IX Rule 13 CPC. The Court observed that when such an appellate remedy is available, a revision petition under Section 115 of the CPC is not maintainable. The Court also emphasized that the availability of an appellate remedy precludes the use of revisional jurisdiction. The Court stated, “Thus, when an alternative and effective appellate remedy is available to a defendant, against an ex-parte decree, it would not be appropriate for the defendant to resort to filing of revision under Section 115 of the CPC challenging the order refusing to set aside the order of setting the defendant ex-parte.” The Court further clarified that when there is an express provision available under the CPC or any statute under which an appeal is maintainable, bypassing the same, a Revision Petition cannot be filed. The Court also noted, “It is needless to observe that in the absence of an appellate remedy, a revision may be maintainable.”

The Court also noted that the Trial Court had dismissed both the application for condonation of delay and the main petition under Order IX Rule 13 CPC, stating, “In the result, the petition is dismissed.” This further clarified that the dismissal of the main petition was a consequence of the dismissal of the delay condonation application, both of which were appealable.

Key Takeaways

• A Civil Revision Petition under Section 115 of the CPC is not maintainable when an appeal is available under Order XLIII Rule 1(d) CPC.
• An order rejecting an application under Order IX Rule 13 CPC to set aside an ex-parte decree is appealable.
• Parties must exhaust the appellate remedy before resorting to a revision petition.
• Courts should not bypass express provisions of law providing for appeals.

Directions

The Supreme Court set aside the High Court’s order and granted liberty to the first respondent to file an appeal under Order XLIII Rule 1(d) CPC on or before December 31, 2023. The Court directed that the issue of limitation should not be raised by the High Court if such an appeal is filed. The High Court was also directed to dispose of the appeal in accordance with the law.

Development of Law

The ratio decidendi of this case is that when an appeal is available under Order XLIII Rule 1(d) CPC against an order rejecting an application under Order IX Rule 13 CPC, a revision petition under Section 115 of the CPC is not maintainable. This judgment reinforces the principle that parties must adhere to the specific remedies provided by law and exhaust appellate remedies before resorting to revision. There is no change in the previous position of law, but the Supreme Court has reiterated the correct procedure to be followed in such cases.

Conclusion

The Supreme Court’s decision in The Koushik Mutually Aided Cooperative Housing Society vs. Ameena Begum clarifies the procedural requirements for challenging an order rejecting an application to set aside an ex-parte decree. The judgment emphasizes that a revision petition is not maintainable when an appeal is available, reinforcing the importance of adhering to the specific remedies provided under the Code of Civil Procedure. The Court’s decision ensures that parties follow the correct legal procedures and that the appellate process is properly utilized.