Supreme Court Affirms Appellate Remedy Against Ex-Parte Decree Overrides Revision Petition Under S.115 CPC

In a recent pronouncement, the Supreme Court clarified that the recourse to a Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) is not viable when seeking redress against the rejection of an application under Order IX Rule 13 of the CPC to set aside an ex-parte decree.

The bench, comprising Justice BV Nagarathna and Justice Ujjal Bhuyan, underscored the importance of adhering to explicit provisions for appeals within the CPC or relevant statutes, emphasizing that a Revision Petition cannot circumvent such established channels. The court stated, “When there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passing the same, a Revision Petition cannot be filed. It is needless to observe that in the absence of an appellate remedy, a revision may be maintainable.”

The case in question involved the Appellant’s pursuit of a specific performance decree for an agreement to sell, resulting in an ex-parte decree by the Civil Court. Subsequently, the 1st Respondent’s application under Order IX Rule 13 for setting aside the decree, along with a plea for condonation of delay, was dismissed by the court.

Undeterred, the first respondent sought recourse through a Civil Revision Petition under Section 115 of the CPC before the High Court. The High Court overturned the lower court’s decision, effectively allowing the previously dismissed petition under Order IX Rule 13 CPC.

Delving into the issue at hand, the Supreme Court questioned the viability of a Civil Revision Petition against the Trial Court’s order, particularly when the alternative appellate remedy, i.e., an appeal under Order XLIII Rule 1 CPC, is available to the defendant.

The court clarified, “When an application or petition filed under Order IX Rule 13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC. Thus, Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed.”

Highlighting the three available remedies against an ex-parte decree, the Apex Court pointed out that an appeal under Order XLIII Rule 1(d) CPC is maintainable when an application seeking condonation of delay and setting aside an ex-parte decree is dismissed.

In concluding remarks, the Supreme Court emphasized that, given the availability of an appellate remedy under Order XLIII Rule 1(d) of the CPC, the filed revision under Section 115 of the CPC was not maintainable.

The legal representation included Senior Advocates C. S. Vaidyanathan and Gopal Sankaranarayanan for the Appellant and Senior Advocate Sajan Poovayya for the 1st Respondent. The case in reference is Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum, Special Leave Petition (C) No. 5489 Of 2021.