VidhiSangh

Supreme Court of India · 11/07/2022

MOHAMED ALI versus V. JAYA & ORS.

[2022] 13 S.C.R. 274 · 2022 INSC 696

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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

  1. 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.
  2. 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.
  3. 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

Held

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.

Judgment PDF: Supreme Court of India, [2022] 13 S.C.R. 274.