THE KOUSHIK MUTUALLY AIDED COOPERATIVE HOUSING SOCIETYversusAMEENA BEGUM & ANOTHER

                 [2023] 15 S.C.R. 841 : 2023 INSC 1065



                             CASE DETAILS

THE KOUSHIK MUTUALLY AIDED COOPERATIVE HOUSING
                   SOCIETY
                                      v.
                   AMEENA BEGUM & ANOTHER
                      (Civil Appeal No. 7903 of 2023)
                          DECEMBER 01, 2023
        [B. V. NAGARATHNA AND UJJAL BHUYAN, JJ.]

                              HEADNOTES

      Issue for consideration: Application filed by the Respondent seeking
condonation of delay in filing the petition to set aside the ex-parte decree was
dismissed by Trial Court. Consequently, the petition filed under Order IX
Rule 13 CPC seeking setting aside of the ex-parte decree was also dismissed.
In revision, High Court set aside the order by which the application seeking
condonation of delay was dismissed thereby allowing the petition filed under
Order IX Rule 13 CPC which was dismissed by the Trial Court. Order of
the High Court whether justified.
       Code of Civil Procedure, 1908 – Order IX r.13; s.115 – Appellant
filed suit seeking a decree of specific performance of an agreement to
sell – Ex-parte decree passed – Respondent filed an application u/Order
IX r.13 for setting aside of ex-parte decree along with an application
for condonation of delay – Dismissed – Revision Petition filed u/s.115,
High Court set aside the aforesaid order implying that the petition filed
u/Order IX r.13 which had also stood dismissed was allowed – Propriety:
      Held: When an application or petition filed under Order IX r.13 CPC
is dismissed, the defendant can avail a remedy by preferring an appeal
in terms of Order XLIII r.1 CPC – Thus, Civil Revision Petition u/s.115
of the CPC would not arise when an application/petition under Order IX
r.13 CPC is dismissed – 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 u/s.115 of the
                                     841
842          SUPREME COURT REPORTS                      [2023] 15 S.C.R.


CPC challenging the order refusing to set aside the order of setting
the defendant ex-parte – In view of the appellate remedy under Order
XLIII r.1(d) CPC being available, revision under Section 115 of the
CPC filed in the instant case was not maintainable – 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 – Impugned order set aside – Alternative Remedy.
[Paras 16, 17]

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7903 of 2023.
      From the Judgment and Order dated 08.01.2021 of the High Court for
the State of Telangana at Hyderabad in CRP No.4866 of 2018.
      Appearances:
     C. S. Vaidyanathan, Gopal Sankaranarayanan, Sr. Advs., Vinay P.
Tripathi, Ms. Monalisa Kosaria, B. Shravanth Shanker, B. Yeshwanth Raj,
Vinayak Goel, Nitish Raj, Ms. Shivani Vij, Ms. Jhanvi Dubey, Advs. for
the Appellant.
      Sajan Poovayya, Sr. Adv., Mrs. Sanjanthi Sajan Poovayya,
Yelamanchili Shiva Santosh Kumar, Rudrajit Ghosh, Tarun Gupta, Advs.
for the Respondents.

       JUDGMENT / ORDER OF THE SUPREME COURT

                                ORDER
      1. Leave granted.
      2. Being aggrieved by order dated 08.01.2021 passed by the learned
Single Judge of the High Court for the State of Telangana at Hyderabad in
Civil Revision Petition No. 4866/2018, this appeal has been preferred.
     3. We have heard Sri C. S. Vaidyanathan, learned senior counsel along
with Sri Gopal Sankaranarayanan, learned senior counsel for the appellant
and Sri Sajan Poovayya, learned senior counsel for the first respondent and
    THE KOUSHIK MUTUALLY AIDED COOPERATIVE                                843
   HOUSING SOCIETY v. AMEENA BEGUM & ANOTHER

perused the material on record. The second respondent has been deleted
from the array of parties in terms of this Court’s Order dated 25.04.2023.
      4. Briefly stated, the facts are that the appellant herein had filed O.S.
No.1144/1988 on the file of the V-Senior Civil Judge, City Civil Court,
Hyderabad seeking a decree of specific performance of an agreement to
sell dated 26.04.1985. In the said suit, the respondent(s) herein were set ex-
parte. Thereafter, an ex-parte decree was passed on 15.02.1999. It is stated
that execution proceedings as against the ex-parte decree are still pending
before the Executing Court. However, the first respondent herein filed an
application on 07.01.2016 seeking setting aside of ex-parte decree dated
15.02.1999 along with an application under Section 5 of the Limitation Act,
1963 seeking condonation of 5767 days delay in filing the said application
seeking setting aside of ex-parte decree.
     5. By order dated 07.06.2018, the V-Senior Civil Judge, City Civil
Court, Hyderabad dismissed I.A. No.30/2016 filed for seeking condonation
of delay of 5767 days in filing the application seeking setting aside of the
ex-parte decree under Oder IX Rule 13 Code of Civil Procedure, 1908
(‘CPC’ for the sake of convenience). The said application was considered
by the Trial Court and by order dated 07.06.2018, the application seeking
condonation of delay was dismissed. Consequently, the petition filed under
Order IX Rule 13 CPC seeking setting aside of the ex-parte decree also
stood dismissed.
      6. Being aggrieved, the first respondent herein filed a Civil Revision
Petition under Section 115 of the CPC before the High Court contending that
Trial Court was not right in dismissing the application seeking condonation
of delay of 5767 days in filing the petition to set aside the ex-parte decree
dated 15.02.1999.
      7. By the impugned order dated 08.01.2021, the High Court has
set aside Order dated 07.06.2018 passed in I.A. No.30/2016 in O.S.
No.1144/1988, which also implies that the petition filed under Order IX
Rule 13 CPC which had also stood dismissed has been allowed. In the Civil
Revision Petition, the High Court condoned the delay of 5767 days in filing
the petition filed under Order IX Rule 13 CPC seeking setting aside the ex-
parte decree dated 15.02.1999 by directing the Trial Court to dispose of the
petition filed under Order IX Rule 13 CPC and to complete the trial of the
844             SUPREME COURT REPORTS                      [2023] 15 S.C.R.


suit expeditiously, within a period of four months from the date of receipt
of certified copy of this order.
     8. Being aggrieved by the said order passed in Civil Revision Petition
by the High Court, the plaintiff/appellant has preferred this appeal.
     As noted above, we have heard learned senior counsel for the
respective parties and perused the material on record.
      9. At the outset, this Court queried as to how a Civil Revision Petition
was maintainable against an order passed by the Trial Court dismissing
the application filed seeking condonation of delay in filing the petition
under Order IX Rule 13 CPC and consequently rejecting or dismissing
the said petition also.
      10. During the course of submissions, it was noted that, in fact, the
rejection of a petition filed under Order IX Rule 13 CPC is an appealable
order and, therefore under Order XLIII Rule 1(d) CPC, an appeal ought to
have been filed before the High Court rather than a Civil Revision Petition
under Section 115 of the CPC.
      11. For the sake of immediate reference, Order XLIII Rule 1(d) CPC
is extracted as under in juxtaposition to Section 115 of the CPC:
      “Order XLIII Rule 1. Appeal from orders – An 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 – 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
    THE KOUSHIK MUTUALLY AIDED COOPERATIVE                               845
   HOUSING SOCIETY v. AMEENA BEGUM & ANOTHER

           (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.”
      12. As against the ex-parte decree, a defendant has three remedies
available to him. First, is by way of filing an application under Order IX
Rule 13 CPC seeking for setting aside ex-parte decree; the second, is by
way of filing an appeal against the ex-parte decree under Section 96(2) of
the CPC and the third, is by way of review before the same court against
the ex-parte decree.
      13. The filing of an application under Order IX Rule 13 CPC as well
as the filing of appeal under Section 96(2) of the CPC against the ex-parte
decree are concurrent remedies available to a defendant. However, once the
appeal preferred by the defendant against the ex-parte decree is dismissed,
except when it is withdrawn, the remedy under Order IX Rule 13 CPC
cannot be pursued. Conversely, if an application filed under Order IX Rule
13 CPC is rejected, an appeal as against the ex-parte decree can be preferred
and continued under Section 96(2) of the CPC. Thus, an appeal against an
ex-parte decree even after the dismissal of an application under Order IX
Rule 13 CPC is maintainable.
846          SUPREME COURT REPORTS                         [2023] 15 S.C.R.


    14. In Bhanu Kumar Jain vs. Archana Kumar, AIR 2005 SC 626 : (2005)
1 SCC 787, speaking through Sinha, J. observed in paragraph 26 as under:
      “When an ex parte decree is passed, the defendant (apart from filing
      a review petition and a suit for setting aside the ex parte decree on
      the ground of fraud) has two clear options, one, to file an appeal
      and another to file an application for setting aside the order in terms
      of Order IX Rule 13 of the Code. He can take recourse to both the
      proceedings simultaneously but in the event the appeal is dismissed as a
      result whereof the ex parte decree passed by the trial court merges with
      the order passed by the appellate court, having regard to Explanation
      appended to Order IX Rule 13 of the Code a petition under Order
      IX Rule 13 would not be maintainable. However, the Explanation I
      appended to the said provision does not suggest that the converse is
      also true.”
      15. Against the order passed under Order IX Rule 13 CPC rejecting an
application for seeking setting aside the decree passed ex-parte, an appeal
is provided. When an application is filed seeking condonation of delay for
seeking setting aside an ex-parte decree and the same is dismissed and
consequently, the petition is also dismissed, the appeal under Order XLIII
Rule 1(d) CPC is maintainable. Thus, an appeal only against the refusal to
set aside the ex-parte decree is maintainable whereas if an order allowing
such an application is passed, the same is not appealable.
      16. Thus, 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. 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. In view of the appellate
remedy under Order XLIII Rule 1(d) CPC being available, revision under
Section 115 of the CPC filed in the instant case was not maintainable.
     17. When there is an express provision available under the CPC or
any statute under which an appeal is maintainable, by-passing the same,
     THE KOUSHIK MUTUALLY AIDED COOPERATIVE                                 847
    HOUSING SOCIETY v. AMEENA BEGUM & ANOTHER

a Revision Petition cannot be filed. It is needless to observe that in the
absence of an appellate remedy, a revision may be maintainable.
      18. It is clarified that once the Trial Court dismissed the application
seeking condonation of delay in filing petition under Order IX Rule 13
CPC, and consequently, the main petition under Order IX Rule 13 CPC
also stood dismissed which is also noted by the trial Court as “In the result,
the petition is dismissed”.
      19. Realising this aspect regarding the maintainability of a revision
petition before the High Court, Sri Sajan Poovayya, learned senior counsel
submitted that liberty may be reserved to the first respondent herein to file
an appeal and if such an appeal is filed within a time frame to be granted
by this Court, the issue of limitation in filing the appeal under Order XLIII
Rule 1(d) CPC may not be raised by the High Court
      By way of response, Sri C. S. Vaidyanathan, learned senior counsel
submitted that if the impugned order is set aside and liberty is reserved to the
first respondent herein, the appellant may not be prejudiced by such an order.
      20. In the circumstances, we set aside the impugned order on the ground
that the said order was passed in a Civil Revision Petition which was not at
all maintainable under Section 115 of the CPC. However, liberty is reserved
to the first respondent herein to file an appeal under Order XLIII Rule 1(d)
CPC, if so advised, on or before 31.12.2023.
      21. If such an appeal is filed before the High Court, the point of
limitation ought not to be raised by the High Court.
     22. It is needless to observe that the High Court shall dispose of the
appeal to be filed by the first respondent herein in accordance with law.
     23. All contentions on both sides are left open, to be advanced in the
appeal to be filed before the High Court.
      24. This Appeal is allowed and disposed of in the aforesaid terms.
      No costs.
      Pending application (s) shall stand disposed of.


Headnotes prepared by:                                            Appeal allowed.
Divya Pandey