Order IX Rule 13 of Code of Civil Procedure, 1908 : Supreme Court Highlights a Crucial Legal Aspect

Order IX Rule 13 of Code of Civil Procedure, 1908 : Supreme Court Highlights a Crucial Legal Aspect

An important Judgment was passed by the Hon'ble Supreme Court on 17 December 2004.

In context of Code of Civil Procedure, 1908 ("Code") it has been commented in Bhanu Kumar Jain v Archana Kumar & Anr [2004] GCtR 3064 (SC) thus : - 

"An appeal against an ex-parte decree in terms of Section 96(2) of the Code could be filed on the following grounds: 

(i) The materials on record brought on record in the ex-parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and 

(ii) The suit could not have been posted for ex-parte hearing." 

"In an application under Order 9, Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date. 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 9, 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 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true. 

In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an Appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit subject to the conditions laid down therein."

Kindly note that full text Judgments of Hon'ble Supreme Court can be downloaded absolutely free of cost (without any charges except internet data) from the official website at the link 

 https://main.sci.gov.in/judgments

Then entering the date of Judgment, for example, as 17 December 2004.

Written by 

Vishal

Delhi

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