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2016 DIGILAW 117 (KAR)

ANJANAPPA v. R. RAMU

2016-02-02

H.G.RAMESH

body2016
JUDGMENT : H.G.RAMESH, J. Whether an application presented under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short ‘the Code’) to set aside a decree passed ex parte is maintainable, when an appeal presented against such an ex parte decree, by a party other than the one who applied under Order IX Rule 13 of the Code, has been disposed of prior to disposal of the application under Order IX Rule 13 on a ground other than the ground that the appellant has withdrawn the appeal? This is the question that requires determination in this appeal. The question is answered in the negative in view of the Explanation to Order IX Rule 13 of the Code. 2. This appeal is preferred by defendant no.4 under Order XLIII Rule 1(d) of the Code and is directed against the order dated 30.01.2014 passed by the trial court namely, the Court of V Additional City Civil Judge, Bangalore (CCH13) dismissing his application in Misc. No.652/2010 filed under Order IX Rule 13 of the Code to set aside the judgment and decree dated 16.7.2010 passed in the suit in O.S.No.3695/1998. 3. I have heard Sri Ashok Haranahalli, learned Senior Counsel appearing for the appellant on the merits of the appeal and perused the impugned order. 4. It is not in dispute that defendant no.1 namely, G.Varadaraj Naik (not the appellant herein) had presented an appeal in RFA No.1509/2010 to this Court against the aforesaid judgment and decree made in O.S.No.3695/1998. This Court by a reasoned judgment dated 16.2.2012 dismissed the appeal and affirmed the judgment and decree of the trial court. 5. The question that requires to be examined in this appeal is as to whether the application in Misc.No.652/2010 filed by the appellant was maintainable in law in view of the Explanation to Order IX Rule 13 of the Code. To examine the question, it is necessary to extract Order IX Rule 13 of the Code, which reads as follows: “13. Setting aside decree ex parte against defendant. To examine the question, it is necessary to extract Order IX Rule 13 of the Code, which reads as follows: “13. Setting aside decree ex parte against defendant. - In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. Explanation.- Where there has been an appeal against a decree passed exparte-under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.” (Emphasis and underlining supplied) 6. Sri Ashok Haranahalli, learned Senior Counsel appearing for the appellant contended that the Explanation to Order IX Rule 13 of the Code is not applicable to the facts of this case as the appellant had not presented an appeal against the ex parte decree and the aforesaid appeal was presented by some other party. He submitted that the decisions of the Supreme Court in P.Kiran Kumar v. A.S.Khadar [ (2002)5 SCC 161 ] and in Shyam Sundar Sarma v. Pannalal Jaiswal [ (2005)1 SCC 436 ] have no application to the facts of this case as in those cases, the party who applied under Order IX Rule 13 of the Code had presented an appeal against the ex parte decree. According to the learned Senior Counsel, the Explanation will apply only to cases where the party who applied under Order IX Rule 13 of the Code also had presented an appeal against the ex parte decree. 7. In my opinion, the contention of the learned Senior Counsel is devoid of merit as it is contrary to the plain and unambiguous language employed in the Explanation. A plain reading of the Explanation extracted above will show that the Explanation will come into play if an appeal presented against a decree passed ex parte has been disposed of prior to disposal of the application under Order IX Rule 13 of the Code on any ground other than the ground that the appellant has withdrawn the appeal. The applicability of the Explanation is not made dependent on a particular party preferring an appeal. 8. It is not in dispute that the aforesaid appeal in R.F.A.No.1509/2010 preferred against the judgment and decree of the trial court was disposed of prior to disposal of the application filed by the appellant under Order IX Rule 13 of the Code on a ground other than the ground that the appellant had withdrawn the appeal. Hence, the trial court ought to have dismissed the appellant’s application filed under Order IX Rule 13 of the Code as not maintainable in law without examining the matter on merits. Accordingly, the order dated 30.01.2014 of the trial court impugned herein shall be construed as dismissing the appellant’s application in Misc.No.652/2010 as not maintainable in law. Consequently, the observations made in the impugned order shall not prejudice the case of the appellant in any other proceeding. However, the conclusion reached by the trial court to dismiss the application in Misc. No.652/2010 does not warrant any interference. In view of this, no purpose will be served by ordering notice on I.A.No.1/2015 filed for condonation of the delay in filing this appeal. Hence, both I.A.No.1/2015 and the appeal are dismissed. In view of dismissal of the appeal, I.A.No.2/2015 filed for interim stay also stands dismissed. 9. However, the appellant is entitled to avail of all other legal remedies as against the judgment and decree in O.S.No.3695/1998 referred to above. Appeal dismissed.