DEVAKI vs CHANDRIKA AYYAPPAN

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“C.R”
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
RD
WEDNESDAY, THE 23 DAY OF SEPTEMBER 2026 / 1ST ASWINA, 1948
ICR (OP(C)) NO. 7 OF 2026
PETITIONER/S:
1 DEVAKI, W/O. KURUMBAN,
RESIDING AT PUTHENPURA HOUSE, KOTTAPADY KARA,
KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK,
PIN – 686692.
2 VALSA, AGED 40 YEARS
D/O. DEVAKI, RESIDING AT PUTHENPURA HOUSE,
KOTTAPADY KARA, KOTTAPPADY VILLAGE,
KOTHAMANGALAM TALUK, PIN – 686692.
3 RETHY, AGED 38 YEARS
D/O. DEVAKI, RESIDING AT PUTHENPURA HOUSE,
KOTTAPADY KARA, KOTTAPPADY VILLAGE,
KOTHAMANGALAM TALUK, PIN – 686692.

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4 REJANI, AGED 32 YEARS
W/O. KANNAN, RESIDING AT PUTHENPURA HOUSE,
KOTTAPADY KARA, KOTTAPPADY VILLAGE,
KOTHAMANGALAM TALUK, PIN – 686692.
BY ADV SMT. S. SUJINI
RESPONDENT/S:
CHANDRIKA AYYAPPAN,
W/O. AYYAPPAN @ AYYAPPANKUTTY,
RESIDING AT CHERANGANAL (VETTIKKAMATTOM)
PATTARUMALIL HOUSE, KOTTAPPADY KARA,
KOTTAPADY VILLAGE,
KOTHAMNGALAM TALUK, PIN – 686692.
THIS INTRA COURT REFERENCE (OP (CIVIL)) HAVING COME UP FOR
ADMISSION ON 18.09.2026, THE COURT ON 23.09.2026 DELIVERED THE
FOLLOWING:

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“C.R”
JUDGMENT
rd
Dated this the 23 day of September, 2026.
Soumen Sen, C.J.
1. This Intra Court Reference arose from an order of the
th
learned Single Judge dated 20 February, 2025, in OP
(Civil) Nos.519 and 972 of 2024, in view of two conflicting
findings of different Benches of this Court regarding the
period of limitation for filing an application under Order IX
Rule 7 of the Code of Civil Procedure, 1908 (“CPC”, for
1
brevity). In C.L. Cleetus v. The South Indian Bank Ltd.
it was held that Article 137 of the Limitation Act, 1963
(“Limitation Act”, for brevity) applies and that such an
application is governed by a limitation period of three
years. The said view was followed by the Division Bench in
2
Y. Daniel v. Annama , without independently considering
whether it prescribes any period of limitation for an
application under Order IX Rule 7 CPC.
1
2007 (3) KHC 911
th
2
Judgement dated 15 March 2012 in O.P(FC) No.10 of 2012

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2. Ordinarily a Single Judge is bound by the decision of the
Division Bench. However, when a Single Judge doubts the
correctness of the opinion of the Larger Bench, the
appropriate remedy is to place the matter before the Chief
Justice for appropriate orders and for deciding the issue by
constituting a Larger Bench in view of the decisions of the
Hon’ble Supreme Court in the cases of Central Board of
3
Dawoodi Bohra Community v. State of Maharashtra
and Pradip Chandra Parija v. Pramod Chandra
4
Patnaik .
3. The issues that came up for consideration before us in this
intra court reference are as follows:-
I. Whether an application filed under Order IX Rule 7 of the
Code of Civil Procedure to set aside an ex-parte order is
subject to any limitation period?
II. Whether Article 137 of the Limitation Act applies to an
application under Order IX Rule 7 of the Code of Civil
Procedure?
3
(2005) 2 SCC 673
4
(2002) 1 SCC 1

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4. Before answering the aforesaid issues, it would be
appropriate to refer to some of the relevant provisions in
Order IX of the CPC which deal with “ Appearance of parties
and consequence of non-appearance ”.
5. Order IX Rule 7 CPC deals with the procedure where the
defendant appears on the day of the adjourned hearing
and assigns good cause for previous non-appearance. It
reads as follows:
“7. Procedure where defendant appears on day of
adjourned hearing and assigns good cause for
previous non-appearance.—Where the Court has
adjourned the hearing of the suit, ex parte, and the
defendant, at or before such hearing appears and
assigns good cause for his previous non-appearance,
he may, upon such terms as the Court directs as to
costs or otherwise, be heard in answer to the suit as if
he had appeared on the day fixed for his appearance.”
(emphasis supplied)
6. Whereas, the procedure dealing with setting aside an ex
parte decree comes under Order IX Rule 13 of the CPC and
it reads as follows:

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“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 ex parte 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 that ex parte decree.”
(emphasis supplied)

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7. From the facts of the instant case, it appears that the
application filed to set aside the ex parte order was
dismissed by the court on the ground that it had been filed
belatedly, without being accompanied by a petition to
condone the delay. According to the learned counsel for
the petitioner, an application filed under Order IX Rule 7
CPC to set aside an ex parte order is not subject to any
period of limitation and, therefore, need not be
accompanied by a petition to condone the delay. The
submission of the respondent, on the other hand, was that
Article 137 of the Limitation Act is applicable and that a
period of three years is prescribed as the limitation
period within which such an application is to be filed
before the court.
8. The Hon’ble Supreme Court in Sangram Singh v.
5
Election Tribunal, Kotah and Another , while deciding
an election petition for setting aside the election of the
5
(1955) 1 SCC 323

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appellant therein had come up with a contrast in the
language between Rules 7 and 13 of Order IX CPC. It was
held as follows:
“26. Now, as we have seen, the first hearing is either
for the settlement of issues or for final hearing. If it is
only for the settlement of issues, then the Court cannot
pass an ex parte decree on that date because of the
proviso to Order 15 Rule 3(1) which provides that that
can only be done when
“… the parties or their pleaders are present and
none of them objects.”
On the other hand, if it is for final hearing, an ex
parte decree can be passed, and if it is passed, then
Order 9 Rule 13 comes into play and before the decree
is set aside the Court is required to make an order to
set it aside. Contrast this with Rule 7 which does not
require the setting aside of what is commonly, though
erroneously, known as “the ex parte order”. No order is
contemplated by the Code and therefore no order to set
aside the order is contemplated either. But a decree is a
command or order of the court and so can only be set
aside by another order made and recorded with due
formality”
*
“27. Then comes Rule 7 which provides that if at an
adjourned hearing the defendant appears and shows
good cause for his “previous non-appearance”, he can be
heard in answer to the suit—
“7. … as if he had appeared on the day fixed for
his appearance.”

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This cannot be read to mean, as it has been by some
learned Judges, that he cannot be allowed to appear at
all if he does not show good cause. All it means is that
he cannot be relegated to the position he would have
occupied if he had appeared.”
*
“29. Now Rule 2 only applies when one or both of the
parties do not appear on the day fixed for the adjourned
hearing. In that event, the court is thrown back to Order
9 with the additional power to make “such order as it
thinks fit”. When it goes back to Order 9 it finds that it is
again empowered to proceed ex parte on the adjourned
hearing in the same way as it did, or could have done, if
one or other of the parties had not appeared at the first
hearing, that is to say, the right to proceed ex parte is a
right which accrues from day to day because at each
adjourned hearing the Court is thrown back to Order 9
Rule 6. It is not a mortgaging of the future but only
applies to the particular hearing at which a party was
afforded the chance to appear and did not avail himself
of it. Therefore, if a party does appear on “the day to
which the hearing of the suit is adjourned”, he cannot be
stopped from participating in the proceedings simply
because he did not appear on the first or some other
hearing.
30. But though he has the right to appear at an
adjourned hearing, he has no right to set back the
hands of the clock. Order 9 Rule 7 makes that clear.
Therefore, unless he can show good cause, he must
accept all that has gone before and be content to
proceed from the stage at which he comes in. But what
exactly does that import? To determine that it will be
necessary to hark back to the first hearing.”
(emphasis supplied)

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9. Thus, the distinction drawn by the Hon’ble Supreme
Court between Rules 7 and 13 of Order IX CPC assumes
significance. While Rule 13 specifically provides for
setting aside an ex parte decree, Rule 7 does not
contemplate setting aside any order, but only enables the
defendant, upon showing good cause for his previous
non-appearance, to participate in the proceedings from
the stage at which he appears. The expression “as if he
had appeared on the day fixed for his appearance”
occurring in Rule 7 makes it clear that the provision is
intended to restore the defendant to the position he
would have occupied had he appeared on the date fixed,
subject to his showing good cause. Therefore, an order
proceeding ex parte under Rule 6 does not, by itself, give
rise to an application for setting aside such order under
Rule 7 in the same manner as an ex parte decree under
Rule 13.

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10. The Hon’ble Supreme Court in Arjun Singh v. Mohindra
6
Kumar and Others was considering whether dismissal
of an application under Order IX Rule 7 CPC to set aside
the ex parte order would bar as res judicata for hearing
an application under Order IX Rule 13 CPC to set aside
an ex parte order. The Apex Court in paragraph 14 held
as follows:-
“14. It is needless to point out that interlocutory
orders are of various kinds; some like orders of
stay, injunction or receiver are designed to preserve
the status quo pending the litigation and to ensure
that the parties might not be prejudiced by the
normal delay which the proceedings before the court
usually take. They do not, in that sense, decide in
any manner the merits of the controversy in issue in
the suit and do not, of course, put an end to it even
in part. Such orders are certainly capable of being
altered or varied by subsequent applications for the
same relief, though normally only on proof of new
facts or new situations which subsequently emerge.
As they do not impinge upon the legal rights of
parties to the litigation the principle of res judicata
does not apply to the findings on which these orders
are based, though if applications were made for
relief on the same basis after the same has once
been disposed of the court would be justified in
rejecting the same as an abuse of the process of
6
AIR 1964 SC 993

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court. There are other orders which are also
interlocutory but would fall into a different category.
The difference from the ones just now referred to
lies in the fact that they are not directed to
maintaining the status quo, or to preserve the
property pending the final adjudication but are
designed to ensure the just, smooth, orderly and
expeditious disposal of the suit. They are
interlocutory in the sense that they do not decide
any matter in issue arising in the suit, nor put an
end to the litigation. The case of an application
under 0. IX, Rule 7 would be an illustration of this
type. If an application made under the provisions of
that rule is dismissed and an appeal were filed
against the decree in the suit in which such
application were made, there can be no doubt that
the propriety of the order rejecting the reopening of
the proceeding and the refusal to relegate the party
to an earlier stage might be canvassed in the appeal
and dealt with by the appellate court. In that sense,
the refusal of the court to permit the defendant to
"set the clock back" does not attain finality. But
what we are concerned with is slightly different and
that is whether the same Court is finally bound by
that order at later stages so as to preclude its being
reconsidered. Even if the rule of res judicata does
not apply it would not follow that on every
subsequent day which the suit stands adjourned for
further hearing, the petition could be repeated and
fresh orders sought on the basis of identical facts.
The principle that repeated applications based on
the same facts and seeking the same reliefs might
be disallowed by the court does not however
necessarily rest on the principle of res judicata.
Thus if an application for the adjournment of a suit

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is rejected, a subsequent application for the same
purpose even if based on the same facts, is not
barred on the application of any rule of res judicata,
but would be rejected for the same grounds on
which the original application was refused. The
principle underlying the distinction between the rule
of res judicata and a rejection on the ground that no
new facts have been adduced to justify a different
order is vital. If the principle of res judicata is
applicable to the decision on a particular issue of
fact, even if fresh facts were placed before the Court,
the bar would continue to operate and preclude a
fresh investigation of the issue, whereas in the
Other case, on proof of fresh facts, the court would
be competent, may would be bound to take those
into account and make an order comfortably to the
facts freshly brought before the court.”
(emphasis supplied)
11. Similarly, in the case of Vijay Kumar Madan and
Others v. R.N. Gupta Technical Education Society
7
and Others , the Hon’ble Supreme Court, while
considering the scope of Order IX Rule 7 CPC, held that
an application under the said provision is required when
the defendant seeks to reopen the proceedings from the
stage at which they became ex parte . The Apex Court
7
(2002) 5 SCC 30

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further held that, though the Court is empowered to
impose terms as to costs or otherwise, such terms cannot
place the defendant in a worse position than he would
have occupied had he not preferred the application, nor
can they be so onerous as to prejudge the controversy or
virtually decree the suit. However, the judgment does not
prescribe any period of limitation for an application
under Order IX Rule 7 CPC. Relevant paragraphs of the
said judgment are as follows:
“6. Having heard the learned counsel for the
parties, we are of the opinion that the impugned order
of the High Court deserves to be maintained but
subject to certain modifications. Under Order 9 Rule 7
CPC the court does have jurisdiction, while setting
aside the ex parte order to impose costs and also to
put the defendant-applicants on terms. Rule 7 of
Order 9 CPC reads as under:
“7. Procedure where defendant appears on
day of adjourned hearing and assigns good
cause for previous non-appearance.—Where
the court has adjourned the hearing of the suit
ex parte, and the defendant, at or before such
hearing, appears and assigns good cause for
his previous non-appearance, he may, upon
such terms as the court directs as to costs or

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otherwise, be heard in answer to the suit as if
he had appeared on the day fixed for his
appearance.”
7. Power in the court to impose costs and to put the
defendant-applicant on terms is spelled out from the
expression “upon such terms as the court directs as
to costs or otherwise”. It is settled with the decision of
this Court in Arjun Singh v. Mohindra Kumar [AIR
1964 SC 993] that on an adjourned hearing, in spite
of the court having proceeded ex parte earlier the
defendant is entitled to appear and participate in the
subsequent proceedings as of right. An application
under Rule 7 is required to be made only if the
defendant wishes the proceedings to be reflected
back and reopen the proceedings from the date
wherefrom they became ex parte so as to convert the
ex parte hearings into bi-parte. While exercising
power of putting the defendant on terms under Rule 7
the court cannot pass an order which would have the
effect of placing the defendant in a situation more
worse off than what he would have been in if he had
not applied under Rule 7. So also the conditions for
taking benefit of the order should not be such as
would have the effect of decreeing the suit itself.
Similarly, the court may not in the garb of exercising
power of placing upon terms make an order which
probably the court may not have made in the suit
itself. As pointed out in the case of Arjun Singh [AIR
1964 SC 993] the purpose of Rule 7 in its essence is
to ensure the orderly conduct of the proceedings by
penalizing improper dilatoriness calculated merely to
prolong the litigation.”
(emphasis supplied)

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12. In Rasiklal Manikchand Dhariwal and Another v.
8
M/s. M.S.S. Food products , the Hon’ble Supreme Court
dealt extensively with Order IX Rules 6, 7 and 13 CPC. It
was held that Order IX Rule 7 has no application once
the hearing of the suit has been concluded and the
matter has been reserved for judgment. Rule 7
presupposes that the suit has been adjourned for
hearing. An adjournment merely for pronouncement of
judgment is not an adjournment of the hearing of the
suit. In such circumstances, the defendant cannot invoke
Rule 7 to participate in the concluded hearing.
13. The Apex Court further explained that in the case before
th
it, on 17 March, 2005, the trial court had closed the
plaintiff's evidence, proceeded ex parte against the
defendants, heard the plaintiff's arguments and fixed the
matter for pronouncement of judgment. Consequently,
the subsequent application filed by the defendants under
8
(2012) 2 SCC 196

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Order IX Rule 7 was held to be not maintainable. In this
case also, the applicability of limitation was not
discussed by the Hon’ble Supreme Court.
14. We shall now consider whether an application filed under
Order IX Rule 7 CPC is governed by Article 137 of the
Limitation Act. The issue assumes significance in view of
the divergent views expressed by various Courts on the
applicability of the residuary provision.
15. Article 137 corresponds to Article 181 of the old Act of
1908 and is a residuary Article for all applications,
including petitions. For the purpose of filing an
application in a suit where there is no specific Article in
the Limitation Act, Article 137 of the Limitation Act would
apply and the period of limitation prescribed is three
9
years . Article 137 refers not only to applications under
CPC but to petitions original or otherwise as being
9 th
Basu, Commentary on the Law of Limitation Act, 1963 , 11 edn.
(2025), p. 816.

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included within the word ‘applications’ and that those
petitions and applications may be forming part of any
10
Special Acts or Local Laws .
16. The learned Amicus Curiae has relied upon several
judgments of various courts which ruled that limitation is
not applicable to Order IX Rule 7 of CPC. We will now
discuss each one of them in detail.
17. The first case relied upon is Kunjan v. Kalliani Amma
11
and Ors. wherein it was held as follows:
“1. Rule 7 provides that if at an adjourned hearing the
defendant appears and shows good cause for his
previous non-appearance, he may be heard in answer
to the suit as if he had appeared on the day fixed for
his appearance. This does not mean that he cannot be
allowed to appear at all if he does not show good
cause. It only means that he cannot be relegated to the
position he would have occupied if he had appeared. If
he appears on the day to which the hearing of the suit
is adjourned, he cannot be prevented from participating
in the proceedings at all simply because he did not
appear on a previous hearing. This has been decided
in Sangram Singh v. Election Tribunal Kotah and
10
M.L. Singhal, Commentary on the Limitation Act (Act No. 36 of
nd
1963), 2 edn., pp. 805–806.
11

1960 KLT 1141

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another MANU/SC/0044/1955 : A.I.R. 1955 S.C. 425.
Therefore it is clear that the dismissal of the petition by
the lower court is not correct. What the lower court
should have done was to have allowed the defendant
to participate in the proceedings and should have
considered the case under O. 8, R. 10 of the Code of
Civil Procedure. If the court considered that the case
was one in which a written statement should have
been put in, then the consequences entailed by Rule 10
should be suffered. And what those consequences
were should have been decided by the court in the
judicial exercise of its discretion, to meet the ends of
justice, which means, in the words of the Supreme
Court justice not only to the defendant and the other
side but also to witnesses and others who may be
inconvenienced.”
12
18. In Kumara Pillai v. Thomas , it was held as follows:
“3. Several decisions were cited by both sides, most
of which deal with the effect of an order setting aside a
decree passed ex parte. It is unnecessary to refer to
those decisions as this is not a case of setting aside an
ex Parte decree. Wallace, J., considered the effect of an
order under Older 9, Rule 7 of the CPC, in
Venkatasubbiah v. Lakshminarasimhan, 49 Mad LJ
273 : (AIR 1925 Mad 1274) and observed:
“One cardinal principle to be observed in trials by a
court obviously is that a party has a right to appear
and plead his cause on all occasions when that cause
comes on for hearing. It follows that a party should not
be deprived of that right, and in fact the court has no
option to refuse that right, unless the Code of Civil
12
1960 SCC OnLine Ker 351

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Procedure deprives him of it. Is there any rule of
procedure then which gives power to a court to say to a
party when he appears to plead his case that it cannot
hear him because at the previous hearing he was
absent? I do not so read Order 9, Rule 7. That applies
to a Party who wishes to be relegated back to the
position which he would have been in if he had
appeared at a previous hearing at which he was
absent, and who wishes the Proceedings taken in his
absence to be taken over again in his Presence, so that
he may regain the opportunities of cross-examination,
etc., which he lost by his absence. After all “ex parte”
only means that the party has not been heard because
he was absent and the adjournment of the hearing “ex
parte” in the words of Rule 7 applies only to the
hearing on the particular day when that hearing and
adjournment “ex parte” was made. I do not see any
ground for extending its operation to all subsequent
hearings of the suit”.
4. This decision was considered in Pemmal v.
Kondamma, AIR 1939 Mad 385. Varadaehariar, J.
held:
“………Among the authorities referred to by the
District Munsiff it is sufficient to refer to the judgment
of Wallace, J., in 49 Mad LJ. 273: (AIR 1925 Mad
1274). The principle enunciated by the learned Judge
is that even a defendant who fails to show good cause
for his previous non-appearance is not debarred from
participating in the further conduct of the case and that
the original order only covers the period during which
the party was originally absent. He proceeds to point
out that where good cause for non-appearance is
shown, the party would be relegated back to the
position which he would have been put in if he had

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appeared at the previous hearing i.e., that proceedings
which have taken place in his absence could be re-
opened so as even to give him the opportunity of cross
examining witnesses that had been examined in his
absence. This principle has generally been adopted in
most of the reported cases vide Pattanna v. Neeli
Chetti, ILR 51 Mad 597: (AIR 1927 Mad 1197):
Aramugam Pillai v. Kandaswami Pillai, AIR 1928 Mad
211 (2); and Harba v. Mt. Chandrabhaga, AIR 1931
Nag 122. The extreme view taken in Oudh is opposed
to the preponderance of authority”. The decision of
Wallace, J., was followed by Staples, A.J.C., in AIR
1931 Nag. 122. The learned Judicial Commissioner
has pointed out the remedies open to a party who
failed to appear at the first hearing and against whom
an order declaring him ex parte has been passed.
The following passage from his judgment may be
extracted:
“…………O. 9, R. 6, is not meant to be a penal
clause but is only meant to prevent undue delay. If the
defendant chooses not to appear after he has been
served, the court may proceed in his absence, but if he
subsequently appears he ought not to be debarred
from taking any further part in the proceedings even if
he can show no good cause for his absence : all that
the Code says in O. 9, R. 7, is that, if he does show
good cause, the ex parte order may be set aside and
the defendant heard in answer to the suit, as if he had
appeared on the date fixed. That means that the case
is put back to the stage at which it had arrived when
the defendant first failed to appear; and the defendant
suffers no loss or disadvantage through his non-
appearance except perhaps an order for costs. If
however the defendant fails to show good cause, he
cannot claim any rehearing, and what has already
taken place in his absence must stand. As regards

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future proceedings however he should not be debarred
from appearing and contesting the suit.”
*
7. I am in respectful agreement with the above view.
The position is that the second defendant against
whom an order declaring him ex parte was passed on
the date of the first hearing is entitled to come in and
take part in the trial at a later stage. If he agrees to be
bound by what has taken Place during his absence he
need not make an application under Order 9, Rule 7 of
the CPC, and get the order set aside; he can continue
from the stage at which he appears.
*
8. However, if he desires to cross-examine the
witnesses examined before he entered appearance he
can apply under Rule 7 and get an order, in which
case he can claim an opportunity to cross-examine the
witnesses examined before he entered appearance. In
such a case, what he seeks is to be relegated back to
the position he would have been in if he was present
on the day on which evidence was taken. Had he been
so Present he would have got an opportunity to cross-
examine the plaintiff's witness. This is the right which
he can exercise after getting an order under Order 9,
Rule 7.”
13
19. In Kamal Singh v. Sat Pal , the Punjab and Haryana
High Court observed as follows:
“4. After hearing the learned counsel for the appellant,
I find force in the contention raised on behalf of the
13
1985 SCC OnLine P&H 317

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appellant. The defendant against whom an order
declaring him to be proceeded ex parte was passed on
the date of the first hearing is entitled to come in and
take part in the trial at a later stage. If he agrees to be
bound by what has taken place during his absence he
need not make an application under Order 9 Rule 7,
C.P.C. for getting the order set aside; he can continue
from the stage at which he appears. However, if he
desires to cross-examine the witnesses examined
before he entered appearance he can apply under Rule
7 of Order 9 and get an order, in which case he can
claim an opportunity to cross-examine the witnesses
examined before he entered appearance. In such a
case, he seeks to be relegated back to the position he
would have been if he were present on the day on
which evidence was taken in his absence. Had he
been so present, he would have got an opportunity to
cross-examine plaintiffs witnesses. This is the right
which he can exercise after getting an order under
Order 9 Rule 7, C.P.C. It was so held in Kumara Pillai's
case Supra.”
(emphasis supplied)
14
20. In Rajasekar v. Govindammal (late) , the Madras High
Court observed as follows:
“ 19 . The point that would arise for determination in
this Revision is, as to whether, Article 137 of the
Limitation Act would apply to an application under
Order 9 Rule 7 of the Code of Civil Procedure. The
Hon'ble Supreme Court in Sangram Singh v. Election
Tribunal, Kotah, (1956) 69 LW 1: AIR 1955 SC 425,
referred to supra, had clearly held that there is no
14
2020 SCC OnLine Mad 28529

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limitation for filing a petition under Order 9 Rule 7 of
the Code of Civil Procedure. As the language of the
provision itself would suggest an application
contemplated under Rule 7 of Order 9 is not one to set
aside an act of Court, but one to seek permission to put
the clock back so that the defendant can defend the
suit as if he was present at the earliest stages of the
suit. The logic or rationale behind those decisions
which conclude that there is no limitation for filing an
application under Order 9 Rule 7 can be explained from
another angle.
20 . A person who has been set exparte in the
proceedings will definitely have a right to seek to set
aside the exparte decree that is passed against him
within 30 days from the date of such exparte decree.
This has been made clear by the Hon'ble Supreme
Court in Arjun Singh v. Mohindra Kumar, AIR 1964 SC
993, wherein the Hon'ble Supreme Court had held that
a rejection of an application under Order 9 Rule 7 of
the Code of Civil Procedure, will not operate as res
judicata, while the Courts considered an application
under Order 9 Rule 13, made after an exparte decree is
passed in the suit or proceedings. If there is nothing in
law that would prevent a person who is set exparte in
the year 2011, from filing an application to set aside
an exparte decree that is passed in the year 2017,
within 30 days of such exparte decree, I do not see
how there could be a prohibition against a person, who
seeks permission of the Court to relegate himself back
to the position which he would have been in, if he had
appeared at the previous hearing, before passing of
such a decree.
21. If it is held that an application under Order 9
Rule 7 would be barred due to lapse of time be it 3

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years or 30 days, it would automatically mean that an
application to set aside the exparte decree that is
made within time after the decree would also be
barred. Such a situation was envisaged by the Hon'ble
Supreme Court when it held that an order passed
rejecting an application under Order 9 Rule 7 will not
operate as res judicata, if the defendant chooses to file
an application to set aside the exparte decree. If we are
to go by the language of Order 9 Rule 13, the
defendant, who has suffered an exparte decree, has to
only explain his absence on the day on which such
exparte decree came to be passed, if he files an
application within 30 days of such exparte decree.
Therefore, in my considered opinion, an anomaly will
be created, if the Courts are to conclude Article 137 or
any other Article of the Limitation Act would apply to
an application under Order 9 Rule 7 of the Code of
Civil Procedure.
22. I am in entire agreement with the contention of
the learned counsel appearing for the petitioner that an
application contemplated under Order 9 Rule 7 is, in
essence not one to set aside an act of Court, but one
seeking permission of the Court to re-open the
proceedings and enable the defendant, who was
absent to participate in the proceedings as if he were
present. It has been repeatedly held that an exparte
defendant has a right to participate in the subsequent
stages of the same litigation. This Court had even as
early as in 1925, in Gokarakonda Venkatasubbiah v.
Daliparthi Lakshmiharasimham, held that the
defendant who had remained ex parte can participate
in the subsequent proceedings and Order 9 Rule 7 of
the Code of Civil Procedure, does not prevent such
participation. It only applies to a case, where a party
declared exparte seeks to be delegated back to the

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position which he would have been in, if he had
appeared at the previous hearing.
23. Adverting to the decisions which take the view
that Article 137 would apply, I can straight away point
out that those decisions are against the spirit of the
judgments of the Hon'ble Supreme Court in Sangram
Singh v. Election Tribunal, Kotah, (1956) 69 LW 1: AIR
1955 SC 425, and Arjun Singh v. Mohindra Kumar,
AIR 1964 SC 993. Unfortunately, the two decisions of
the Hon'ble Supreme Court which have a great bearing
on the issue before us, viz., the judgment of the Hon'ble
Supreme Court in Sangram Singh's case and Arjun
Singh's case, cited supra, were not brought to the
notice of the learned Judge, who decided Visalakshi v.
Umapathy, (2015) 3 LW 332: (2015) 5 CTC 67. The
learned Judge has referred to the decision of the Delhi
High Court and concluded that Article 137 would apply
to the case on hand.
24. In G. Krishnasamy v. G. Seenivasan, referred to
supra, the learned Judge has merely followed the
judgment in Visalakshi v. Umapathy, to conclude that
Article 137 of the Limitation Act would apply. The same
is the case in Ramadoss v. Mohan, made in CRP No.
2412 of 2016 dated 23.08.2016, wherein we find no
discussion, excepting that the decision in Visalakshi v.
Umapathy, is applied. As regards the decision of the
Division Bench of the Kerala High Court in Y. Daniel v.
Annamma, referred to by the learned counsel for the
respondent, the Division Bench only accepted the view
in Cleetus v. South Indian Bank, (2007) 3 KLT 868, but
there are earlier decisions of the Kerala High Court
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25. As I had already pointed out the judgment in
Tarlochan Singh. v. Union Bank of India, does not
touch upon the issue. I must also point out that the
judgment in Gokarakonda Venkatasubbiah v.
Daliparthi Lakshmiharasimham, was approved by the
Hon'ble Supreme Court in Sangram Singh's case. In
Pilla Reddy v. Thimmaraya Reddy, (1997) 1 Mad LJ
37, Hon'ble Mr. Justice S.S. Subramani, had after
referring to almost all the cases on the point concluded
that there is no limitation for an application under
Order 9 Rule 7 of the Code of Civil Procedure.
26. As I had already pointed out none of the
decisions which conclude that Article 137 of the
Limitation Act would apply to an application under
Order 9 Rule 7 of the Code of Civil Procedure, have
taken note of the earlier decisions of the Hon'ble
Supreme Court in Sangram Singh v. Election Tribunal,
Kotah, AIR 1955 SC 425, and Arjun Singh v. Mohindra
Kumar, AIR 1964 SC 993. I am sure that the learned
Judges, who decided those cases, would not have
taken a view as they had if only the judgments of the
Hon'ble Supreme Court had been brought to their
notice.
27. I therefore find that those judgments, viz., the
judgment in Visalakshi v. Umapathy, (2015) 3 LW 332:
(2015) 5 CTC 67, judgment in G. Krishnasamy v. G.
Seenivasan, made in CRP (MD) No. 2819 of 2018 (PD)
dated 04.06.2019, judgment in Ramdoss v. Mohan,
made in CRP (PD) No. 2412 of 2016 dated 23.08.2016,
cannot be held to be good law, inasmuch as, they are
in conflict with the decisions of the Hon'ble Supreme
Court in Sangram Singh v. Election Tribunal, Kotah,
case, (1956) 69 LW 1: AIR 1955 SC 425, and Arjun
Singh v. Mohindra Kumar, case, AIR 1964 SC 993. For

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the foregoing reasons, I conclude that Article 137 of the
Limitation Act, does not apply to an application under
Order 9 Rule 7 of the Code of Civil Procedure and the
same can be filed at any time before the judgment is
delivered in the suit or proceeding.”
(emphasis supplied)
21. The Delhi High Court in the case of Finolex Cables Ltd.
15
v. Finolux Auto Pvt. Ltd. , held as follows:
“10. The legal position which is not in dispute and
which can be extracted from the conjoint reading of the
Supreme Court judgment in the case of Sangram Singh
v. Election Tribunal, Kotah, AIR 1955 SC 425 and
Division Bench judgment of this Court in Lotus
International v. Chaturbhujadas Karnani Textiles (P)
Ltd., (1997) 65 DLT 300 (DB) is this:—
(a) if the defendant does not appear on the date of
hearing fixed by the Court, the Court has power to
proceed ex-parte against him;
(b) when the defendant joins and participates in the
proceedings at a stage when the plaintiff is yet to
examine his witnesses, the defendant shall have right
to cross-examine the plaintiffs witnesses, provided
such cross-examination has not already been
foreclosed. In that event, the Court has also the power
to permit the defendant to adduce evidence on his side.
It really depends as to at what stage the defendant
was set ex-parte under Order IX Rule 6 CPC and at
what stage he has chosen to seek permission to
participate in the proceedings;
15
2007 SC OnLine Del 971

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(c) the defendant can appear later and move
application for setting aside the ex-parte order by
showing sufficient cause for non-appearance on the
date the defendant was proceeded ex-parte. If
sufficient cause is shown, the Court can set aside the
ex-parte order and in that case it shall restart the
proceedings from the stage when the defendant was
proceeded ex-parte on the premise that no proceedings
were held at all on the date when the defendant was
proceeded ex-parte and/or on subsequent dates; and
(d) even if the defendant is not able to show good
cause, he has right to participate in the proceedings
from the stage when he started appearing. However, in
that event he has no right to set back the clock and,
therefore, if any advantage accrued to the plaintiff on
the dates when the defendant had not appeared, that
advantage would continue to accrue in favour of the
plaintiff.”
22. The Hon’ble Madras High Court in Pilla Reddy and Ors.
16
v. Thimmaraya Reddy and Ors. , also decided the
issue of applicability of limitation to the proceedings
under Order IX Rule 7 of the CPC. It was held in the said
decision as follows:
“8. The said finding cannot be correct. It is a pending
proceeding, and it is well-settled law that once a suit
has been instituted, limitation will not run. In Delhi
Development Authority v. Shanti Devi and Anr. AIR
16
(1997) 1 MLJ 37

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1982 Delhi 159, a learned Judge of that High Court
said that 'under the Limitation Act no period is
prescribed for filing an application for setting aside
order proceeding ex parte. Under Rule 7 of Order 9 of
the Code the defendant is allowed to file an application
at or before the next date of hearing and if he assigns
good cause for his non-appearance on the previous
date of hearing the court may set aside the order
proceeding ex parte. The application by the petitioner
defendant under Order 9, Rule 7 was made on the next
th
date of hearing i.e.., 16 August, 1979. Thus it is clear
that the defendant petitioner filed the application in
accordance with Order 9, Rule 7 of the Code. It must
therefore be held that the application was filed in
accordance with law. There is no rule that an
application under Order 9, Rule 7, is to be filed within
30 days from the date of the order proceeding ex parte.
(Italics)
The said decision was followed by our High Court in
the decision reported in Palani Nathan v. Devanai
Animal (1989) 2 MLJ 259. While considering a similar
question, this Court held thus:
“...For filing an application under Order 9, Rule 7,
C.P.C., no limitation is prescribed and that it is open to
the Court to condone her absence and set aside the ex
parte order and permit her to take part in the
proceedings at any stage of the proceedings. In support
of the contention, the learned Counsel for the
respondent drew my attention to the provision of Order
9, Rule 7, C.P.C. which reads:
Where the Court had adjourned the hearing of the suit
ex parte and the defendant, at or before such hearing,

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appears and assigns good cause for his previous no-
appearance, he may, upon such terms as the Court
directs as to costs or otherwise, be heard in answer to
the suit as if he had appeared on the day fixed for his
appearance.
It is only for setting aside the ex parte decree under
Order 9, Rule 13, C.P.C, the question of condoning the
delay under Section 5 of the Limitation Act arises in
case there is a necessity for condonation of the delay
has arisen. In support of his contention, the learned
Counsel for the respondent relied on the decision in
Venkatasubbiah v. Lakshmiharasimhan 49 M.L.J. 273:
91 I.C. 545: A.I.R. 1925 Mad. 1274: 1925 M.W.N. 647.
In that case, on the day of hearing of a suit, a
defendant who had filed his written statement was
absent and the court declared him ex parte. On that
day, the plaintiff's evidence was taken and further
hearing was adjourned to a later date. On the
adjourned date the defendant wanted to present his
evidence. Wallace, J. in that case held:
Held: that the ex parte order covered the period during
which the party was absent and did not preclude him
from proceeding with the suit after that stage.
Order 9, Rule 7, Civil Procedure Code does not prevent
this but applies to the case where the party being
declared ex parte wishes to be relegated back to the
position which he would have been in, if he had
appeared at the previous hearing and had
opportunities of cross-examination, etc.
This was followed in a subsequent decision in
Pattanna v. Neeli Chetty Ramish Chetty and Anr. AIR
1927 Mad 1 197. In Arjun Singh v. Mohindra Kumar

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[1964] 5 SCR 946, Their Lordships of the Supreme
Court while considering the principle of res judicata
with respect to the order passed under Order 9, Rules
7 and 13, held:
“Order 9, Rule 7 does not put an end to the litigation
nor does it involve the determination of any issues in
controversy in the suit. A decision of direction in an
interlocutory proceeding of the type provided for by
Order 9, Rule 7 is not of the kind which can operate as
res judicata so as to bar the hearing on the merits of
an application under Order 9, Rule 13.”
In Kamal Singh v. Sat Pal MANU/PH/0100/1986 in
para 4 it was held:
“The defendant against whom an order declaring him
to be proceeded ex parte was passed' On the date of
the first hearing is entitled to come in and take part in
the trial at a later stage. If he agrees to be bound by
what his taken place during his absence he need not
make an application under Order 9, Rule 7, C.P.C. for
getting the order set aside. He can continue from the
stage at which he appears. However, if he desires to
cross-examine the witnesses examined before he
entered appearance he can apply under Rule 7 of
Order 9 and get an order, in which case he can claim
an opportunity to cross-examine the witness examined
before the entered appearance. In such a case, he
seeks to be relegated back to the position he would
have been if he were present on the day on which
evidence was taken in his absence. Had be been so
present, he would have got an opportunity to cross-
examine the plaintiff's witnesses. This is the right
which he can exercise after getting an order under
Order 9, Rule 7, C.P.C.”

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In the said case, reliance was placed on the decision in
Kumara Pillai v. Thomas, AIR 1961 Ker 287. In Delhi
Development Authority v. Shanti Devi, AIR 1982 Delhi
159.
Under the Limitation Act no period is prescribed for
filing an application for setting aside the order
proceeding ex parte. Under Rule 7 of Order 9 of the
Code the defendant is allowed to file an application or
before the next date of hearing and if he assigns good
cause for his non-appearance on the previous date of
hearing the Court may set aside the order proceedings
ex parte.... There is no rule that an application under
Order 9, Rule 7 is to be filed within 30 days from the
date of the order proceeding ex parte....
In Sangram Singh v. Election Tribunal, Kotah, [1955] 2
SCR 1, after extracting the relevant provision Order 9,
Rule 7, Order 8 Rule 10, their Lordships observed:
“We have seen that if the defendant does not appear
at the first hearing, the court can proceed ex parte,
which means that it can proceed without a written
statement; and Order 9, Rule 7 makes it clear that
unless good cause is shown the defendant cannot put
in a written statement unless he is allowed to do so,
and if the case is one in which the court considers a
written statement should have been put in, the
consequences entailed by Order 8, Rule 10 must be
suffered…...
What those consequences should be in a given case is
for the court, in the exercise of its judicial discretion, to
determine. No hard and fast rule can be laid down. In
some cases, an order awarding costs to the plaintiff

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would meet the ends of justice; an adjournment can be
granted or a written statement can be considered on
the spot and issued framed. In other cases, the ends of
justice may call for more drastic”.
Thus, it is clear from the above decisions, there is no
limitation for filing a petition under Order 9, Rule 7,
Code of Civil Procedure.…”
(emphasis supplied)
23. In several other decisions, the Courts have taken the view
that Article 137 of the Limitation Act is applicable to such
proceedings. The Bombay High Court, in Dr. Sujitnath
17
v. Opadma and Others , held that Article 137 of the
Limitation Act, 1963 applies to an application under
Order IX Rule 7 CPC, where the defendant seeks to set
aside the ex parte order and re-open the proceedings.
Some of the relevant paragraphs of the said decision are
as follows:
“13. A somewhat similar question was considered by
learned Single Judge in Akola Z. P. Akola (supra). It
was held that though Order 9 Rule 7 of the Code did
not speak of the defendant applying for setting aside
an ex parte order, the purport of said Rule indicated
that such an application was required to be moved by
the defendant. It was, therefore, held that such course
17
2015 SCC OnLine Bom 1092

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would attract provisions of Article 137 of the said Act.
Similar view has Three years When the right to apply
accrues. been taken by the Kerala High Court in C.L.
Cleetus (supra) wherein the argument that an
application under provisions of Order 9 Rule 7 could be
moved at any point of time was repelled and it was
held that such application would be governed by
provisions of Article 137 of the Code. Hence, said
submission made on behalf of the petitioners that the
application moved by the defendant Nos. 1A to 1C was
required to be preferred within the limitation prescribed
by Article 137 of the said Act deserves to be accepted.
Xx xx xxxx
16. This aspect can also be viewed from another
angle. In Vijaykumar Madan (supra), the Supreme
Court held that an application under provisions of
Order 9 Rule 7 of the Code could be made only if the
defendant wishes the proceedings to be relegated back
and to re-open the proceedings from the date
wherefrom they became ex parte so as to convert the
ex parte hearing into bi-parte. This, therefore,
contemplates the defendant seeking relief of being
relegated back to the earlier position after re-opening
the proceedings. As the defendants seek relief in that
regard, such application seeking said relief would,
therefore, be governed by Article 137 of the said Act.
17. Having held that the provisions of Article 137 of
the said Act would apply if the defendant prays for
setting aside the ex parte order and seeks permission
to file written statement, it would be necessary to
consider whether such prayer had been made by the
defendant Nos. 1A to 1C vide Exhibit-62. In said
application, the said defendants sought to give reasons

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for their non-appearance in the proceedings even after
service of the summons. There are no pleadings
whatsoever as regards delay in moving said
application and the reasons for said delay. On the
other hand, the petitioners in their reply to the
aforesaid application have taken a clear stand that the
delay in moving the said application had not at all
been explained. The trial Court in the impugned order
did not consider the aspect of delay and allowed
application on the ground that the matter was required
to be decided on merits. As the aspect of delay has not
been considered by the trial Court, it is not necessary
to examine the correctness of the reasons for allowing
the application below Exhibit 62. Hence, question of
applicability of the ratio of the decision in Bhumika
Ajgaonkar (supra) does not arise.
18. It cannot be ignored that on expiry of period of
three years being the period of limitation under Article
137 of the said Act, a right accrued in favour of the
present petitioners. If the defendant Nos. 1A to 1C
desired to participate in the proceedings by setting
aside the ex parte order and by filing their written
statement which application was moved beyond the
period of limitation as prescribed, then it is obvious
that the said defendants were required to seek
condonation of delay in doing so. Consideration of
aforesaid application for setting aside the ex parte
order and for filing the written statement on record in
absence of an application for condonation of delay
would be an exercise without jurisdiction. The law in
this regard is well settled in view of the judgment of
the Division Bench in V.K. Saboo (supra), Mathuradas
Mohta College of Science (supra), Ballumal Jaising
(supra) and Union of India (supra).”

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24. A similar view was taken by the High Court of Himachal
Pradesh in Judhya Devi Deceased through Her Legal
18
Representatives and Others v. Chotta Ram , wherein
it was held as follows:
“11. There is no Article in the Limitation Act providing
any specific period of limitation for filing an application
under Order 9 Rule 7 of the Code and, therefore, such
application is to be governed by the residuary Article
137 which prescribes a period of three years.
12. Reliance for coming to such a conclusion can be
placed on the judgment rendered by the Kerala High
Court in C.L. Cleetus v. South Indian Bank Ltd., AIR
2007 Ker 301 wherein it was observed as under:—
“6…….It is true that there is distinction between
applications which are filed under Order IX Rule 13 and
those filed under Order IX Rule 7, in that while the
former seeks cancellation of decrees finally disposing of
suits, the latter seeks cancellation of only orders setting
the applicant ex parte, thus preventing him from
participating in further proceedings in the suit. It is also
true that unlike applications under Order IX Rule 13,
there is no article in the Limitation Act providing any
specific period of limitation for applications under Order
IX Rule 7. Such applications will be governed by Article
137, the residuary article which prescribes a period of
three years…….”
13. The ratio of the aforesaid judgment has been
followed by the various High Courts. Reference in this
18
2022 SCC OnLine HP 779

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behalf can conveniently be made to an unreported
judgment decided on 15.02.2013 by the Delhi High
Court in Vikas Dedeech v. Richlook Garments (P) Ltd., in
C.R.P No. 33/2013, by the Madras High Court in Palani
Nathan v. Devanai Ammal, (1989) 2 LW 63, Kasturi v.
Saravanan @ Sakthi Saravanan, (2010) 7 Mad LJ 802,
Raja Ji v. R. Krishna Ji, (2006) 1 LW 790 and earlier to
that Madras High Court in Raja Ji v. R. Krishna Ji,
(2005) 3 Mad LJ 379 has also taken an identical view to
the one taken by the Kerala High Court.
14. Now that it is settled that limitation for filing an
application for setting aside the ex parte order is three
years, the moot question is whether an application
seeking setting aside ex parte order dated 08.06.2015
that was filed more than four years back i.e. 05.08.2019
that too without any application for condonation of delay
could have been entertained much less decided by the
learned trial Court, that is for the reasons as already
reproduced above, the answer to the question is in the
negative.”
19
25. In the case of Visalakshi v. Umapathy & Ors . it was
held by the Madras High Court as follows:-
“14. Article 137 of the Limitation Act, 1963 envisages
that any other application for which no period of
limitation is provided elsewhere in this division, three
years of limitation is prescribed and the period of
limitation starts from the date when the right to apply
accrues.
15. It is the settled proposition that Article 137 of the
Limitation Act, 1963 will apply to any petition or
19
2014 SCC OnLine Mad 12854

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application filed under any Act to a civil court. It is not
confined to applications contemplated by or under the
Code of Civil Procedure.
16. From the above context, it is thus clear that this
Article applies to all petitions and applications and not
confined to the applications contemplated by or under
the Code of Civil Procedure.
17. It is the settled proposition that Article 137 of the
Limitation Act 1963 will apply to any petition or
application filed under any Act to a civil court.
*
“26. The learned Single Judge has also held that, “thus
an order passed in a suit, finally determining the rights
of the parties shall be a decree, while final order
passed on an application shall simply be an order and
not a Decree. Thus the word ‘Decree’ must be given the
meaning assigned to it in the Civil Procedure Code. To
put it differently, the prescribed period of limitation for
an application under Or. 9, R. 13 C.P.C., for setting
aside an ex parte Decree is 30 days, but not for an
application to set aside the exparte order with the
result that an application for setting aside an ex parte
order, shall be governed by the residuary clause
contained in Article 137 of the Limitation Act.
27. In paragraph 20, the learned Judge has observed
as under:—
“20. The learned counsel appointed to assist the Court
has drawn the attention of the Court to the decision
reported in AIR 1988 Calcutta 358. This Court's finding
that petition filed under Or. 9 R. 9 would be governed
by Art. 137 of the Limitation Act is fortified by the

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decision of the Full Court of the Calcutta High Court
which reads:—
“As regards the limitation for filing the aforesaid
application for restoration there is no specific provision
in the Limitation Act 1963 and therefore such
application for restoration would be governed by Art.
137 of the Act and be filed within a period of three
years as prescribed therein. Although the period of
limitation for making an application for restoration of a
suit dismissed for default under Or. 9 is thirty days
from the date of the order of dismissal, the application
for restoration of miscellaneous case arising out of
such application under Or. 9, when such Misc. Case is
dismissed for default, is not governed by the provisions
of Art. 122 of the Limitation Act in view of the fact that
expressly in terms of the said Art. 122, the
miscellaneous case arising out of an application under
Or. 9 is not attracted.”
28. The ratio applied by the learned Single Judge of
this Court in Rajaji's case, has also been applied in
C.L. Cleetus v. South Indian Bank Ltd. (AIR 2007
Kerala 301), wherein the Kerala High Court has
observed that,
“It is true that there is distinction between applications
which are filed under Order 9 Rule 13 and those filed
under Order 9 Rule 7, in that while the former seeks
cancellation of decree finally disposing of suits, the
latter seeks cancellation of only orders setting the
applicant ex parte, thus preventing him from
participating in further proceedings in the suit. It is also
true that unlike the applications under Order 9 Rule 13
there is no article in the Limitation Act providing any
specific period of limitation for applications under

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Order 9 Rule 7. Such applications will be governed by
Article 137, the residuary article which prescribes a
period of three years.”
26. Having considered the rival submissions and the
statutory scheme of Order IX CPC, as well as the
decisions referred to above, we are of the view that an
application under Order IX Rule 7 CPC cannot be treated
on the same footing as an application under Order IX
Rule 13 CPC. Rule 13 expressly provides a remedy for
setting aside an ex parte decree and the period of
limitation for such an application is specifically provided
under the Limitation Act. Rule 7, on the other hand, does
not contemplate setting aside any decree or any
concluded adjudication. It enables a defendant, who
appears at or before the adjourned hearing and assigns
good cause for his previous non-appearance, to
participate in the proceedings as if he had appeared on
the date originally fixed.

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27. The distinction assumes significance in the light of the
law laid down by the Hon’ble Supreme Court in Sangram
20
Singh v. Election Tribunal, Kotah and Arjun Singh
21
v. Mohindra Kumar , wherein the Apex Court has
specifically noticed that Rule 7 does not contemplate an
order setting aside what is commonly, though
erroneously, described as an “ex parte order”. The right to
proceed ex parte operates with reference to the particular
hearing and, if the defendant appears at a subsequent
hearing, he cannot be prevented from participating in the
proceedings merely on account of his previous absence.
However, unless good cause is shown, he cannot seek to
turn back the clock and reopen the proceedings which
have already taken place.
28. The same principle is discernible from the decision of the
Hon’ble Supreme Court in Arjun Singh (supra) , wherein
20
AIR 1955 SC 425
21
AIR 1964 SC 993

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an application under Order IX Rule 7 was treated as an
interlocutory proceeding intended to ensure the just,
smooth and orderly conduct of the suit. The refusal to
permit the defendant to “set the clock back” does not put
an end to the litigation and does not finally determine
any issue in controversy.
29. The decision in Vijay Kumar Madan (supra) also makes
it clear that an application under Rule 7 is required only
when the defendant seeks to re-open the proceedings
from the stage at which they became ex parte and to
convert the ex parte proceedings into bi-parte
proceedings. Significantly, the Hon’ble Supreme Court,
while explaining the scope of Rule 7, has not prescribed
any period of limitation for invoking the said provision.
30. Likewise, in Rasiklal Manikchand Dhariwal (supra) ,
the Hon’ble Supreme Court has reiterated that Rule 7
operates only so long as the hearing of the suit has not

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concluded. Once the hearing is concluded and the matter
is adjourned merely for pronouncement of judgment,
Rule 7 has no application. The said decision also did not
prescribe any period of limitation for an application
under Rule 7.
31. It is true that certain High Courts have taken a contrary
view and have held that, in the absence of a specific
period of limitation, Article 137 of the Limitation Act
would apply to an application under Order IX Rule 7
CPC. The decisions in Dr. Sujitnath (supra) and Judhya
Devi (supra) , following C.L. Cleetus (supra) , proceed on
the premise that the defendant, by seeking to set aside
the ex parte order and reopen the proceedings, is seeking
a relief for which Article 137 would prescribe a period of
three years.
32. However, in our considered view, the aforesaid approach
does not sufficiently take into account the distinction

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drawn by the Hon’ble Supreme Court in Sangram Singh
(supra) between an ex parte order under Rule 7 and an ex
parte decree under Rule 13. More importantly, Rule 7
itself does not prescribe any period within which an
application is required to be filed. The provision operates
with reference to the stage of the proceedings, namely,
when the suit has been adjourned for hearing and the
defendant appears at or before such hearing and assigns
good cause for his previous non-appearance.
33. The learned counsel for the plaintiff has referred to the
decision of the Hon’ble Supreme Court in Lal K. B.
22
(Krishna Bahadur Lal) v. Gyanendra Pratap , and
submitted that, in the said decision, the Hon’ble Supreme
Court has held that, under Order IX Rule 7 of the CPC,
provisions of the Limitation Act shall apply. However, we
are unable to accept the said submission as it appears
that the Apex Court, in the said decision, was considering
22
2024 SCC OnLine SC 508

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as to whether the petitioner therein was able to offer a
satisfactory or reasonable ground to explain the delay of
14 years in filing an application under Order IX Rule 7 of
the CPC and, in the said application, the appellant had
sought the benefit of Section 5 of the Limitation Act for
condonation of delay. The said decision is not an
authority for the proposition that, for recalling of an order
by which the Court adjourned the hearing of the suit ex
parte due to non-appearance of the defendant for the
defendant to make an application on the day of the
adjourned hearing and to pray for recalling of the said
order upon showing good cause for his previous non-
appearance would attract the provisions of Article 123 of
the Limitation Act.
34. The phrase “assigns good cause for his previous non-
appearance”, as a condition precedent for the Court
exercising its discretion to set aside the order for setting

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the suit on the ex parte board, should not be confused
with the phrase “the applicant satisfied the Court that he
had sufficient cause” under Section 5 of the Limitation
Act, so as to create an impression that the provisions of
the Limitation Act would apply to such application,
although the Court may apply the same test to ascertain
whether the defendant had sufficient cause for non-
appearance on the said date. What is important is that
the order directing the suit to appear for hearing on the
ex parte board is not an order which is final in nature
and deciding the rights and liabilities of the parties. It is
not a final order nor a decree which can operate as res
judicata between the parties. It is only fixing a date for
hearing of the suit, and if, on that date or before the said
date, the defendant appears and assigns good cause for
his previous non-appearance, the Court may exercise its
discretion to recall the said order upon such terms and
conditions as the Court may deem fit and proper,

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including the imposition of costs, and restore status quo
ante , that is to say, as if the defendant had appeared on
the date when the hearing of the suit was adjourned and
the suit was set down on the ex parte board for hearing.
35. The finality is attached to the said proceeding only when
the suit is decreed ex parte , and for setting aside such ex
parte decree under Article 123 of the Limitation Act, the
defendant would have the right to file an application for
setting aside such ex parte decree from the date of the
decree or, where the summons or notice was not duly
served, when the applicant had knowledge of the decree.
In view of the nature of the order that the Civil Court
passes in exercise of its jurisdiction under Order IX Rule
7 of the CPC for recalling the said order, the Limitation
Act cannot have any manner of application. The test shall
be the termination of a proceeding.

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36. The expression “at or before such hearing” occurring in
Rule 7 is, therefore, of considerable significance. The
right contemplated under the provision is not one which
becomes extinguished merely by the passage of a
specified period of time. Its exercise is controlled by the
stage at which the suit has reached. Once the hearing of
the suit is concluded and the matter is reserved for
judgment, Rule 7 itself ceases to be available, as held in
the decision in Rasiklal Manikchand Dhariwal (supra) .
Thus, importing a three-year limitation period through
Article 137 would introduce a restriction which is not
contemplated by the statutory scheme of Order IX Rule 7.
37. Rule 6(a) of Order IX empowers the Court to pass an
order declaring the defendant ex parte on the date fixed
for his appearance. Here, we deem it relevant to notice
the legislative change brought to Rule 6(1)(a) by the CPC
1976 Amendment. Prior to the amendment, the Rule

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read, “… may proceed ex parte”, which was by the
amendment, substituted with the words, “… may make
an order that the suit be heard ex parte”. The rule was
st
amended with effect from 1 February, 1977 and the
word “order” was inserted. Naturally, a doubt may arise
as to whether insertion of the word “order” in Rule 6(a) by
the 1974 amendment would lead us to the conclusion
that when the court declares a defendant as ex parte , it
partakes of the characteristics of an order under Rule
6(a), and therefore, the law of limitation will apply.
38. In Sangram Singh (supra) , the Hon’ble Apex Court has
observed that no order is contemplated under Rule 6. It
could possibly be contended that the amendment has
brought in a change. However, we find that the
amendment does not in any manner operate against the
reasoning or the conclusion.

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39. The Law Commission was of the view that even in the
absence of formal evidence, where the suit proceeds ex
parte , a decree could follow. The Statement of Objects
and Reasons also suggests so. However, the Joint
Committee observed that unless there was evidence
before the Court, which if uncontroverted, would entitle
the plaintiff for a decree, the Court should not be
empowered to pass an ex parte decree. The relevant
portion of the report as published in the Gazette of
st
India dated 1 April, 1976 reads thus:
"Clause 59 - (Original Clause 62). - (i) The Bill
provides that when the plaintiff appears and the
defendant does not appear, the Court may proceed
ex parte, if it is proved that the summons was duly
served and may give a judgment on the basis that
the facts stated in the plaint are true. The Committee
feel that the Court should not be empowered to pass
an ex parte decree unless there was evidence before
it to indicate that, if such evidence were not
controverted, the plaintiff would be entitled to a
decree. In the circumstances, the Committee feel that
the status quo ante should be maintained. Proposed
Clause (a) of Sub-rule (1) of Rule 6 has been
amended accordingly."

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40. Order VIII Rule 10 gives the court the power to pass
Judgment in terms of the plaint when the defendant fails
to file a written statement. So, the next question will be
whether, on failure of the defendant to appear on the date
fixed for appearance, the court should pass a judgment
in terms of Rule 10 of Order VIII.
41. It must be remembered that, despite being set ex parte ,
the defendant is not precluded from participating in the
trial of the suit and examining the witnesses, including
the plaintiff, limited to the extent of demolishing the case
of the plaintiff.
42. Therefore, merely because the rule postulates of an order
being passed under Rule 6 of Order IX, it does not
automatically follow that the plaintiff will get a decree in
its favour. The Court has to consider the merits of the
suit claim. [See Sudha Devi (Smt) v. M.P Narayanan

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23
and Others , Shantilal Gulabchand Mutha v. Tata
Engineering And Locomotive Company Limited And
24 25
Another , and Maya Devi v. Lalta Prasad ]. At the
stage of Order IX Rule 6, no issues of moment touching
upon the merits of the matter is decided. It is only
procedural in nature giving further opportunity to the
defendant to appear on or before the adjourned date and
upon assigning good cause for his previous non-
appearance, the defendant may be allowed to contest the
suit upon such terms as the court deems fit and proper.
43. Therefore, there has been no significant change in the
legal position on the implication of Rule 6(1)(a), by the
mere incorporation of the term "order" in the Rule. As
noticed by us, it is a formal order in the course of the
proceedings, noting that the defendant has not appeared
and has remained ex parte . There is no adjudication of
23
AIR 1988 SC 1381
24
(2013) 4 SCC 396
25

AIR 2014 SC 1356

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rights as against the defendant. No appeal lies against
such order. As noted above, Rule 7 enables the defendant
to take part in the proceedings at the subsequent
hearing. So also Rule 7 expressly stipulates for an
application for resetting the clock back on good cause
being shown at an adjourned hearing. We find that the
that the reasonings given by the Apex Court in Sangram
Singh (supra) and Arjun Singh (supra) still hold good.
44. Apart from that, if the plea that limitation applies to an
application under Rule 7 is accepted, it will lead to an
anomolous situation. In a given case, where the
defendant is set ex parte , and the suit gets delayed, and
ultimately a decree is passed after the period of limitation
fixed under Article 137, still the defendant will be entitled
to file an application under Rule 13 to set aside the ex
parte decree if his application is within time. In such a
situation, can the Court refuse to entertain the

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application under Rule 13 because no application under
Rule 7 was filed within the prescribed period of
limitation?
45. Yet another aspect to be noted is that Rule 6(a) provides
that the court may order that the suit be heard ex parte .
The specific wording of Rule 6(a) means the court cannot
deliver a judgment on the failure of the defendant to
appear on the date fixed for appearance. Further, Rule 7
enables the defendant to appear on a subsequent date
and show cause why he could not appear on the said
date for hearing. If the defendant assigns good cause for
his previous non-appearance, the court may order that
he be heard in answer to the suit.
46. We are also conscious of the fact that a contrary view has
been taken by this Court in C.L. Cleetus (supra) , which
was subsequently followed by the Division Bench in Y.
Daniel (supra). However, as noticed in the order of

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reference, the Division Bench in Y. Daniel (supra)
followed C.L. Cleetus (supra) without independently
examining whether Article 137 of the Limitation Act is
applicable to an application under Order IX Rule 7 CPC.
47. Having regard to the principles laid down by the Hon’ble
Supreme Court in the decisions in Sangram Singh
(supra) , Arjun Singh (supra) , Vijay Kumar Madan
(supra) and Rasiklal Manikchand Dhariwal (supra) , we
are of the considered view that an application under
Order IX Rule 7 CPC is not governed by Article 137 of the
Limitation Act. Such an application can be made at the
appropriate stage of the proceedings, before the hearing
of the suit is concluded, subject of course to the
defendant satisfying the requirements of Rule 7,
including showing good cause for his previous non-
appearance.

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48. The contrary view expressed in C.L. Cleetus (supra) and
the decisions following the same, insofar as they hold
that Article 137 of the Limitation Act governs an
application under Order IX Rule 7 CPC, cannot be
accepted as laying down the correct legal position.
49. In view of the foregoing discussion, the questions referred
to us are answered as follows:
(i) An application under Order IX Rule 7 CPC is not
subject to any period of limitation prescribed under the
Limitation Act, 1963.
(ii) Article 137 of the Limitation Act, 1963 does not apply
to an application under Order IX Rule 7 CPC.
50. The intra court reference is disposed of accordingly.
O.P(C) Nos.519 and 972 of 2024 shall be placed before
the appropriate Bench as per roster.

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51. We record our appreciation for the assistance received
from Adv. Sri. Jacob P. Alex, the learned Amicus Curiae .
Sd/-
SOUMEN SEN,
CHIEF JUSTICE
Sd/-
SATHISH NINAN,
JUDGE

Sd/-
EASWARAN S.,
JUDGE
krj
//TRUE COPY//
P.A. TO C.J.