Full Judgment Text
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CASE NO.:
Appeal (civil) 3285-86 of 2002
PETITIONER:
P KIRAN KUMAR
Vs.
RESPONDENT:
A.S. KHADAR & ORS.
DATE OF JUDGMENT: 03/05/2002
BENCH:
V.N. Khare & Ashok Bhan
JUDGMENT:
Bhan, J.
Delay condoned.
Leave granted.
The short point involved in these appeals is as to whether
"the dismissal of an appeal against an ex-parte decree on the
ground that the same is barred by limitation attracts the
provisions of explanation to Order IX Rule 13 of the Code of
Civil Procedure and creates a bar to the maintainability of an
application under Order IX Rule 13, CPC for setting aside an
ex-parte decree.
Appellant, (then a minor), while going from School to his
house at Lakshmi Talkies, Andersonpet, KGF, Bangalore met
with an accident at about 1.30 p.m. on 30th November, 1988
with a motorcycle bearing Registration No.MEB 910.
Respondent No.1, AS Khadar was driving the motorcycle
which is owned by respondent No.2 (respondent No.1 is the son
of respondent No.2). Appellant, through his father, filed a claim
petition under Section 110A of the Motor Vehicles Act on 28th
March, 1989 for a total sum of Rs.1,50,000/- as compensation.
Respondent Nos.1 and 2 appeared through a common advocate
who filed his vakalatnama on their behalf before the Motor
Accident Claims Tribunal, Kolar (for short ’the Tribunal’). On
3rd December, 1991 the counsel appearing for the respondents
filed a memo before the Tribunal seeking to withdraw from the
case for want of instructions. Thereafter respondents neither
put an appearance in person nor through a counsel. Tribunal set
the respondents ex-parte. After taking evidence of the
appellant, Tribunal allowed the claim in part and awarded a
sum of Rs.1,00,000/- as compensation, out of which
Rs.75,000/- was directed to be kept in an fixed deposit till the
appellant attained majority and the balance amount of
Rs.25,000/- was directed to be paid to the appellant’s father for
meeting the treatment and other incidental expenses.
Since the order was not complied with, execution petition
No.6/1996 was filed before the Principal District Judge, Kolar.
Respondent No.1 was served and he put in his appearance
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before the executing court on Ist January, 1996 through a
counsel. On 22nd November, 1996 at the request of the
appellant, the execution petition was transferred to Bangalore.
Respondent No.2 was thereafter served and he also put in his
appearance.
On 15th September, 1998, respondent No.2 filed an
appeal being M.F.A. No.4166 of 1998 in the High Court of
Karnataka against the order of the Tribunal dated 28th
September, 1995. The appeal was filed along with an
application under section 5 of the Limitation Act to condone the
delay of 994 days in filing the appeal. An application for stay
of the execution proceedings was also filed. Both the
applications were dismissed by the High Court by its order
dated 14th October, 1998. A clear finding was recorded by the
High Court that the respondents were duly served and even had
engaged a counsel in the Tribunal, and as such, the explanation
given for condoning the delay was not only unsatisfactory but
completely false as well. As a consequence thereof the appeal
was dismissed as barred by limitation.
Thereafter respondents filed Mis. No.54 of 1998 on 14th
December, 1998 before the Tribunal under Order IX Rule 13
read with Section 151 of the Code of Civil Procedure for setting
aside the ex-parte Award dated 28th September, 1995 and
permit them to file their written statement and lead evidence.
The Tribunal vide its order dated 15th December, 1999 set aside
the ex-parte proceedings and the award dated 28th September,
1995, with the result the M.V.C. No.152 of 1989 was restored
back to the file for fresh disposal in accordance with law.
One of the points raised before the Tribunal by the
appellant was that the appeal filed by respondent No.2 having
been dismissed by the High Court and the order of the Tribunal
having merged with the order of the High Court made in the
appeal, an application under Order IX Rule 13 for setting aside
the ex-parte award was not maintainable. The Tribunal
correctely noted the principle of law to the effect that the appeal
filed against the ex-parte order having been dismissed, an
application under Order IX Rule 13 to set aside the award
would not be maintainable but rejected the plea for want of
particulars of the appeal (its number etc.).
Aggrieved by the order of the Tribunal the appellant
filed Civil Revision Petition No.1345 of 2000 which was
dismissed (on 11th December, 2000), even without noticing the
plea raised by the appellant that the application under Order IX
Rule 13 was not maintainable in view of the dismissal of the
appeal by the High Court against the order of the Tribunal in
MFA No.4166 of 1998. Thereafter the appellant filed a review
petition No.104 of 2001 which was also dismissed on 3rd April,
2001 without noticing the point that the application under Order
IX Rule 13, CPC was not maintainable in view of the dismissal
of the earlier appeal filed by respondent No.2.
Aggrieved by the order passed by the High Court in Civil
Revision No.1345 of 2000 and Review Petition No.104 of
2001 the present appeals by special leave have been filed.
The only contention raised on behalf of the appellant is
that on a true interpretation of the explanation to Order IX Rule
13, CPC the application for setting aside the ex-parte decree
must be held to be incompetent in view of the dismissal of the
appeal filed by respondent No.2. It was urged that even if the
appeal was dismissed on the ground of limitation, the
application under Order IX Rule 13 for setting aside the ex
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parte award would not be maintainable. Order IX Rule 13,
CPC reads as under:
ORDER IX RULE 13, CPC
"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 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 appelant has withdrawn the
appeal, no application shall lie under this
rule for setting aside that ex parte decree]."
Explanation was added to Order IX Rule 13 with
effect from February 1, 1977 by the Code of Civil Procedure
(Amendment Act, 1976). Prior to its enactment a defendant
burdened by an ex parte decree could apply under Order IX
Rule 13 for setting aside the ex parte decree. He could also file
an appeal under Section 96 against the ex parte decree. The
mere fact of filing the appeal did not take away the jurisdiction
to entertain and dispose of an application for setting aside an ex
parte decree. Only in the cases in which the trial court decree
merged with the order of the appellant court by reversal,
confirmation or varying it, the trial court was precluded from
setting aside the ex parte decree. Where the trial court decree
did not merge with the appellate court order the trial court was
at liberty to proceed with the application for setting aside the
ex-parte decree. Such instances arose when the appeal was
dismissed in default or where it was dismissed as having abated
by reasons of omission by the appellant to implead the legal
representatives of a deceased respondent or where it was
dismissed as barred by limitation. Explanation was added to
discourage the two pronged attacks on the decree i.e. by
preferring an application to the trial court under Order IX Rule
13 for setting aside the decree and by filing an appeal to the
superior court against it. The legislative attempt incorporating
the Explanation to Order IX Rule 13 is to confine the
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defendant, to either one of the remedies made available to him
and not both. Dismissal of the appeal on any ground, apart
from its withdrawal constituted a bar on the jurisdiction of the
trial court to set aside the ex-parte decree. With the
introduction of the explanation, no application to set aside the
ex-parte decree would be maintainable where the defendant
filed an appeal and the appeal was disposed of on any ground,
other than the ground that the appeal have been withdrawn by
the appellant.
The scope of explanation to Order IX Rule 13 was
considered by this Court in Rani Choudhury vs. Lt. Col. Suraj
Jit Choudhury [ 1982 (2) SCC 596]. In the said case, the wife
who had filed the appeal in this court had obtained an ex-parte
decree of divorce against her husband in the matrimonial court.
Husband had preferred an appeal in the high court alongwith an
application under section 5 of the Limitation Act for
condonation of delay in filing the appeal. The High Court
dismissed the appeal as time barred. Respondent then moved an
application under Order IX Rule 13, CPC for setting aside the
ex parte decree. The matrimonial court dismissed the
application on the ground that sufficient cause was not shown
for condoning the delay. In appeal, however, the High Court
took the view that explanation to Order IX Rule 13, CPC did
not create any bar to the maintainability of the application
under that rule as the appeal against the ex parte decree had not
been dismissed on merits, but on the ground of delay. By not
accepting the application for condonation of delay meant as if
no appeal had been preferred. This Court allowed the appeal
and set aside the judgment and order of the High Court. The
main judgment was written by R.S.Pathak,J. It was held:
"The Code of Civil Procedure (Amendment)
Act, 1976 was enacted with the avowed
purpose of abridging and simplifying the
procedural law. By enacting the
Explanation, Parliament left it open to the
defendant to apply under Rule 13 of Order 9
for setting aside an ex parte decree or, in the
case where he had preferred an appeal, the
appeal had been withdrawn by him. The
withdrawal of the appeal was tantamount to
effacing it. It obliged the defendant to
decide whether he would prefer or have the
decree set aside by the trial court under Rule
13 of Order 9. The legislative attempt
incorporated in the Explanation was to
discourage a two-pronged attack on the
decree and to confine the defendant to a
single course of action. If he did not
withdraw the appeal filed by him, but
allowed the appeal to be disposed of on any
other ground, he was denied the right to
apply under Rule 13 of Order 9. The
disposal of the appeal on any ground,
whatever, apart from its withdrawal,
constituted sufficient reason for bringing the
ban into operation."
The other Hon’ble Judge (Amarendra Nath Sen,J.) took
the same view but recorded his separate reasons for coming to
the same conclusion.
In the present case, as well we find that respondent No.2,
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the father of respondent No.1 preferred an appeal which had
been dismissed as barred by limitation. Reading of the
explanation to Order IX Rule 13 clearly indicates that if any
appeal against an ex-parte decree had been disposed of on any
ground other than the ground that the appellant has withdrawn
the appeal, no application for setting aside the ex parte decree
under Order IX Rule 13, CPC would be entertained.. The
words of the explanation are clear and unambiguous. It clearly
indicate and suggest that if an appeal has been preferred and the
same had been dismissed on any ground other than the
withdrawal of the appeal, the same would cause a bar to the
filing of the application under Order IX Rule 13, CPC for
setting aside the ex prate decree. The position of law on this
point is discussed in paragraph 15 of the Judgment in Rani
Choudhury’s case (supra). It has been observed that on a
proper interpretation of the explanation, if an appeal against an
ex parte decree has been filed and the appeal has been
dismissed on any ground other than the dismissed as
withdrawn, then the application under Order IX Rule 13, CPC
would not be maintainable and cannot be entertained.
In the present case, admittedly an appeal MFA No.4166
of 1998 had been preferred by respondent No.2 and the same
was dismissed as barred by limitation. In view of the dismissal
of the earlier appeal, the application under Order IX Rule 13,
CPC for setting aside an ex parte decree/award was not
maintainable and the Tribunal erred in setting aside the ex parte
decree/award made against the respondents. The High Court
failed to notice this point in spite of the fact that the same had
been specifically raised.
Counsel for the respondents placed reliance on two
Judgments of this Court in Kewal Ram vs. Smt. Ram Lubhai
and others [ AIR 1987 SC 1304] and Kunhayammed and others
vs. State of Kerala and others [ 2000 (6) SCC 359] to contend
that the order of the ex parte award made by the Tribunal did
not merge with the order of the High Court passed in MFA
No.4166 of 1998. Neither of these two Judgments are relevant
to the point in issue. The earlier case relates to the period
before the introduction of Explanation to Order IX Rule 13 in
the Code of Civil Procedure; the scope of explanation to Order
IX Rule 13 was not considered in that Judgment and the latter
Judgment is totally on a different point and has no application
to the facts of the present case or the point involved in this case.
For the reasons stated above we find substance in the
contention raised by the counsel for the appellant and accept
the same. The impugned order of the High Court and that of
the Tribunal setting aside the ex parte award are set aside. It is
held that in view of the dismissal of the appeal MFA No.4166
of 1998 by the High Court, the application under Order IX rule
13 filed by the respondents was not maintainable.
Consequently these appeals are allowed. The executing court
shall now give effect to the ex parte award in accordance with
law. There shall be no order as to costs.
J.
(V.N. Khare)
.J.
( Ashok Bhan)
May 03, 2002
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