Summary
An ex parte decree for specific performance was passed in 2012. Applications to set it aside filed after 1522 and 2345 days were dismissed for unexplained delay. Defendants 2 to 4 filed a revision against that refusal; defendant 1, without challenging it, directly attacked the decree under Article 227. The Madras High Court allowed both and set aside the decree for non-consideration of readiness and willingness, saying nothing on the delay. The Supreme Court allowed the plaintiff's appeals. The remedies against an ex parte decree are Order IX Rule 13 CPC or a first appeal; where the Code provides an appeal, that remedy is a near-total bar to Article 227 (Virudhunagar Hindu Nadargal).
Issues
- Whether the High Court may entertain a petition under Article 227 of the Constitution against an ex parte decree of a civil court when a statutory appeal lies under the Code of Civil Procedure.
- Whether an ex parte decree can be set aside in revision on its merits without first deciding whether the trial court was justified in refusing to condone delays of 1522 and 2345 days in applications under Order IX Rule 13 CPC.
- Whether a defendant who did not challenge the order refusing to condone delay may bypass it by directly attacking the decree under Article 227.
Provisions considered
- Article 227, Constitution of IndiaWhere proceedings are under the CPC before a civil court and the Code itself provides an appeal, the High Court is deterred, as a matter of discipline and prudence, from exercising supervisory jurisdiction; the availability of the appellate remedy is a near-total bar (Virudhunagar Hindu Nadargal, Radhey Shyam). The High Court erred in entertaining the revision against the ex parte decree and in commenting on its merits as though exercising appellate jurisdiction. (¶¶ 6.2, 7, 7.1, 7.2)
- Order IX Rule 13 and Section 115, Code of Civil Procedure, 1908The defendants had invoked Order IX Rule 13 but with huge unexplained delay which the trial court refused to condone by detailed orders; the High Court set aside the refusal qua defendants 2 to 4 without any discussion of whether it was justified, and should not have entertained a revision under Section 115 or Article 227 against the decree itself when an appeal was available. (¶¶ 6, 6.1, 6.2)
Held
- The High Court did not consider at all whether the trial court was justified in refusing to condone the delay of 2345 days, nor that the order refusing to condone defendant 1's delay of 1522 days had attained finality since he never challenged it, nor whether his direct revision under Article 227 against the decree was maintainable. Before expressing anything on the merits of the ex parte decree it had to decide whether the trial court was justified in proceeding ex parte and in refusing condonation. (¶¶ 6, 6.1, 7.2)
- Against an ex parte decree the defendants' remedies were an application under Order IX Rule 13 or a first appeal. Once a statutory appeal was available, the High Court ought not to have entertained a writ or revision under Article 227; wherever proceedings are under the CPC before a civil court, the availability of a remedy under the Code deters the High Court from exercising superintendence, as laid down in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai. (¶¶ 6.2, 7, 7.1)
- The impugned order proceeded on irrelevant considerations, commenting on the legality of the decree as if in appeal, while the relevant aspects were not dealt with; the High Court exceeded its jurisdiction under Article 227 and the order was unsustainable in law and on facts. (¶¶ 7.2, 8)
Result
Appeals allowed; the Madras High Court's common order of 19.11.2021 in CRP (NPD) No. 1054 of 2021 and CRP (PD) No. 1301 of 2021 quashed; the ex parte judgment and decree and the trial court's orders refusing to condone the delay in the applications to set it aside restored. No order as to costs.