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Synopsis

The Supreme Court has said that a revision petition cannot be filed by-passing an express provision available under the Civil Procedure Code or any other statute under which an appeal is maintainable.

A bench of Justices B V Nagarathna and Ujjal Bhuyan, however, clarified that in the absence of an appellate remedy, a revision may be maintainable.

The court allowed an appeal filed by the Koushik Mutually Aided Cooperative Housing Society against the Telangana High Court's order which had set aside an ex parte decree of 1999 by condoning delay of 5767 days, while acting on a civil revision petition filed under Section 115 of the Civil Procedure Code.

The bench wondered as to how a civil revision petition was maintainable against an order passed by the trial court dismissing the application filed seeking condonation of delay in filing the petition under Order IX Rule 13 CPC and consequently rejecting or dismissing the said petition also.

"In fact, the rejection of a petition filed under Order IX Rule 13 CPC is an appealable order and, therefore under Order XLIII Rule 1(d) CPC, an appeal ought to have been filed before the High Court rather than a Civil Revision Petition under Section 115 of the CPC," the bench said.

After going through the relevant provisions, the bench said that against the ex-parte decree, a defendant has three remedies available to him. First, is by way of filing an application under Order IX Rule 13 CPC seeking to set aside the ex-parte decree; the second is by way of filing an appeal against the ex-parte decree under Section 96(2) of the CPC and the third is by way of review before the same court against the ex-parte decree. 

"The filing of an application under Order IX Rule 13 CPC as well as the filing of appeal under Section 96(2) of the CPC against the ex-parte decree are concurrent remedies available to a defendant. However, once the appeal preferred by the defendant against the ex-parte decree is dismissed, except when it is withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued. Conversely, if an application filed under Order IX Rule 13 CPC is rejected, an appeal as against the ex-parte decree can be preferred and continued under Section 96(2) of the CPC. Thus, an appeal against an ex-parte decree even after the dismissal of an application under Order IX Rule 13 CPC is maintainable", the bench added.

Court further pointed out that against the order passed under Order IX Rule 13 CPC rejecting an application for seeking direction to set aside the decree passed ex parte, an appeal is provided. "When an application is filed seeking condonation of delay for seeking setting aside an ex-parte decree and the same is dismissed and consequently, the petition is also dismissed, the appeal under Order XLIII Rule 1(d) CPC is maintainable. Thus, an appeal only against the refusal to set aside the ex-parte decree is maintainable whereas if an order allowing such an application is passed, the same is not appealable", it said.

Thus, the court held that when an application or petition filed under Order IX Rule 13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC. A civil revision petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed, court opined.

Thus, when an alternative and effective appellate remedy is available to a defendant, against an ex-parte decree, it would not be appropriate for the defendant to resort to filing of revision under Section 115 of the CPC challenging the order refusing to set aside the order of setting the defendant ex-parte, the bench said.

"In view of the appellate remedy under Order XLIII Rule 1(d) CPC being available, revision under Section 115 of the CPC filed in the instant case was not maintainable," the bench declared.

"When there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passing the same, a revision petition cannot be filed. It is needless to observe that in the absence of an appellate remedy, a revision may be maintainable," the bench said.

The court, thus, set aside the high court's order on the ground that the said order was passed in a civil revision petition which was not at all maintainable under Section 115 of the CPC.

However, the court granted the respondent liberty to file an appeal under Order XLIII Rule 1(d) CPC, if so advised, on or before December 31, 2023.

Case Title: The Koushik Mutually Aided Cooperative Housing Society Vs Ameena Begum & Another