P Kiran
Kumar Vs. A.S. Khadar & Ors [2002] Insc 246 (3 May 2002)
V.N.
Khare & Ashok Bhan 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 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 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 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, 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.
Back