Holding

If an appeal against an ex‑parte decree is dismissed on any ground other than withdrawal, an application under Order IX Rule 13 to set aside the decree is not maintainable.

Summary

P. Kiran Kumar, a minor, claimed compensation under the Motor Vehicles Act after a road accident. The Motor Accident Claims Tribunal awarded a partial sum ex parte because the respondents withdrew their defence. The respondents appealed the award, but the High Court dismissed the appeal as barred by limitation. They then filed an application under Order IX Rule 13 of the CPC to set aside the ex‑parte award, which the Tribunal allowed, restoring the case for fresh disposal. The Supreme Court held that the explanation to Order IX Rule 13 bars any application to set aside an ex‑parte decree when the appeal has been dismissed on any ground other than withdrawal, and therefore the respondents' application was not maintainable. Consequently, the Court set aside the Tribunal and High Court orders and allowed the appeals, directing execution of the original award.

Issues considered

Does the dismissal of an appeal against an ex‑parte decree on the ground of limitation invoke the explanation to Order IX Rule 13, CPC and bar a subsequent application under that rule to set aside the decree?

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 13 (Explanation)
Limitation Act, 1963s. Section 5
Motor Vehicles Act, 1988s. Section 108

Subjects

ex‑parte decreeOrder IX Rule 13explanationappeal dismissallimitationsetting aside decreeCivil ProcedureMotor Accident Claims Tribunal

Judgment

t P. KlRAN KUMAR A
v.
A.S. KHADAR AND ORS.

MAY 3, 2002

[V.N. KHARE ANOASHOK BHAN, JJ.] B

Code of Civil Procedure, 1908-0rder IX Rule 13, Explanation-Scope
of-Ex-parte decree-Appeal-Dismissal on ground of/imitation-Application
for setting aside ex-parte decree-Maintainability of-Held, such application. C
not maintainable.

The question arose for consideration was whether the dismissal of an
appeal against an ex-parte decree on the ground of limitation attracts the
provisions of explanation to Order IX Rule 13, CPC and creates a bar to the
maintainability of an application under Order IX Rule 13, CPC for setting D
aside an ex~parte decree.

Allowing the appeals, the Court

HELD : I.I. Reading of the explanation to Order IX Rule 13, CPC clearly
indicates that if any appeal against an ex-pa rte decree had been disposed of on E
any ground other than the ground that the appellant has withdrawn the appeal,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. [781-A, B[

r 1.2. In the instant case admittedly an appeal had been preferred by
F
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 raised the ex-parte decree/award made against the
respondents and also the High Court failed to notice this point in spite of the G
fact that the same had been specifically raised. [781-D, E[

Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, [1982[ 2 SCC 596,
referred to.

775 H
776 SUPREME COURT REPORTS [2002] 3 S.C.R.

A Kewal Ram v. Smt. Ram Lubhai and Ors., AIR (1987) SC 1304 and
Kunhayammed and Ors. v. State of Kera/a and Ors., (2000] 6 SCC 359,
distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3285-86 of
2002.
B
From the Judgment and Order dated I l.12.2000 and 3.4.2001 of the
Kamataka High Court in C.R.P. No. 1345/2000 and R.P. No. 104 of2001.
,...
S.R. Bhat, Naveen R. Nath, Ms. Lalit Mohini Bhat and Ms. Hetu Arora
C for the Appellant.

Pawan Kr. Bahl, M. M. Kashyap, K.L. Nandwani and Vipin Nandwani
and Debasis Misra for the Respondents.

The Judgment of the Court was delivered by
D
BHAN, J. Delay condoned.

Leave granted.

E 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
Coqe 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.

F Appellant, (then a minor), while going from School to his house at _...
Lakshmi Talkies, Andersonpet, KGF, Bangalore met with an accident at about
l .30 p.m. on 30th November, 1988 with a motorcycle bearing Registration No.
MEB 910. Respondent No. l, as Khadar was driving the motorcycle which is
owned by respondent No. 2 (respondent No. I is the son of respondent No.
G 2). Appellant, through his father, filed a claim petition under Section I JOA of
the Motor Vehicles Act on 28th March, 1989 for a total sum of Rs. 1,50,000
as compensation. Respondent Nos.' I 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 -
H seeking to withdraw from the case for want instructions. Thereafter respondents
P. KIRAN KUMAR v. A.S. KHA DAR [ASH OK BHAN, J.] 777
neither put an appearance in person nor through a counsel. Tribunal set the A
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.
B
Since the order was not complied with, execution petition No. 6/1996
was filed before the Principal District Judge, Kolar. Respondent No. I was
~
served and' he put in his appearance before the executing court on 1st
January, 1996 through a counsel. On 22nd November, 1996 at the reque~t of
the appellant, the execution petition was transferred to Bangalore. Respondent c
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 Limitatio~ Act to condone the delay of994 D
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
E
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 filed their written statement and lead
F
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.
G
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, and application under Order IX Rule 13 for setting aside •
the ex-parte award was not maintainable. The Tribunal correctly noted the
H
778 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 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
B Petition No. 1345 of2000 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 MF A No. 4166 of 1998. ~
Thereafter the appellant filed a Review Petition No. I 04 of 2001 which was
c 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.

D
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
E if the appeal was dismissed on the ground of limitation, the application under
Order IX Rule 13 for setting aside the ex parte award would not be maintainable.
Order IX Rule 13, CPC reads as under:

Order IX Rule 13, CPC
F "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 ,.

-
~
G 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:
0
.,.
Provided that where the decree is of such a nature that it cannot be
H set aside as against such defendant only it may be set aside as
P. KIRAN KUMAR v. A.S. KHADAR [ASHOK BHAN,!.] 779
against all or any of the other defendants also: A
[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.] B
[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 C
ex parte decree]."

Explanation was added to Order IX Rule 13 with effect from February
l, 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 D
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 E
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 F
,.. 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 superic>r court against it. The legislative
attempt incorporating the Explanation to Order IX Rule 13 is to confine the
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 G
as 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 was
disposed of on any ground other than the ground that the ap~eal have been
withdrawn by the appellant. H
780 SUPREME COURT REPORTS (2002] 3 S.C.R.

A The scope of explanation to Order IX Rule 13 was considered by this
Court in Rani Choudhury v. Lt. Col. Suraj Jit Choudhry, [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
B 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, t-
however, the High Court took the view that explanation to Order IX Rule 13,
c 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
con donation 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:
D
"The Code of Civil Procedure (Amendment) Act, 1976 was enacted
with the avowed purpose of abridging and simpnfying 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
E 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
F 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 -'I!. _,

other ground, he was denied the right to apply under Rule 13 of Order
9. The disposal of the appeal ort any ground, whatever apart from its
withdrawal, constituted sufficient reason for bringing the ban into
operation.
G
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, the father
H of respondent No. I preferred an appeal which had been dismissed as barred
P. KIRAN KUMAR v. A.S. KH~DAR [ASHOK BHAN, J] 781

by limitation. Reading of the explanation to Order IX Rule 13 clearly indicates A
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 the explanation are clear and
unambiguous. It clearly indicate and suggest that if an appeal has been B
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-parte decree.
• The position of law on his 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 C
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, 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 D
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. E
Counsel for the respondents placed reliance on two Judgments of this
Court in Kewal Ram v. Smt. Ram Lubhai and Ors., AIR (1987) SC 1304 and
Kunhayammed and Ors v. State of Kera/a and Ors., [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. F
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 G
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 exparte
award are set aside. It is held that in view of the dismissal of the appeal MFA H
782 SUPREMJ;: COURT REPORTS [2002] 3 S.C.R.

A 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.

N.J. Appeals allowed.