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2022 (7) TMI 1331 - SC - Indian LawsSeeking to set aside the ex-parte judgment and decree passed by the learned Trial Court - in exercise of powers under Article 227 of the Constitution of India the High Court has set aside the ex-parte judgment and decree passed by the learned Trial Court - HELD THAT:- It can be seen that as such the High Court has not at all considered whether the learned Trial Court was justified in refusing to condone such a huge delay of 2345 days. The High Court has also not appreciated and considered the fact that as such the order passed by the learned Trial Court refusing to condone the delay of 1522 days in so far as original defendant No. 1, had attained the finality. Original defendant No. 1 straightway challenged the ex-parte judgment and decree passed by the learned Trial Court by way of revision application under Article 227 of the Constitution of India. Whether the revision application before the High Court under Article 227 of the Constitution of India can be said to be maintainable or not has not at all been considered. Even otherwise, the remedy against an ex-parte judgment and decree available to the defendants was, either to file an application under Order IX Rule 13 of CPC or to prefer an appeal before the First Appellate Court. The defendants availed the first remedy by way of filing the applications under Order IX Rule 13 of CPC. However, there was a huge delay of 1522 and 2345 days, which was not condoned by the learned Trial Court. Even otherwise, against the ex-parte judgment and decree, the remedy by way of an appeal before the First Appellate Court was available. Therefore, the High Court ought not to have entertained the revision application under Section 115 of CPC and under Article 227 of the Constitution of India. The High Court ought not to have entertained such a revision application challenging the ex-parte judgment and decree. Once there was a statutory alternative remedy by way of an appeal available to the defendants, the High Court ought not to have entertained a writ petition or revision application under Article 227 of the Constitution of India - the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the ex-parte judgment and decree passed by the learned Trial Court and in quashing and setting aside the same in exercise of powers under Article 227 of the Constitution of India. The High Court has exceeded in its jurisdiction while setting aside the ex-parte judgment and decree in exercise of powers under Article 227 of the Constriction of India - the impugned common judgment and order passed by the High Court in Civil Revision Petition, is hereby quashed and set aside - appeal allowed.
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