TMI Blog2020 (11) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... MI 217 - SUPREME COURT] that as per explanation to Order 9 Rule 13 of the CPC, after the appeal filed by the defendant against an exparte decree stood disposed of, it constituted sufficient reason for a ban on proceeding in an application for setting aside ex-parte decree filed by such aggrieved defendant - In the case of BHANU KUMAR JAIN VERSUS ARCHANA KUMAR ANR. [ 2004 (12) TMI 676 - SUPREME COURT] , the Hon ble Supreme Court held that application under Order 9 Rule 13 of the CPC would not be maintainable once the Appellate Court disposes of the appeal, as the decree passed by the Trial Court merges with the order passed by the Appellate Court. It was also recognized that explanation to Order 9 Rule 13 of the CPC did not suggest that the converse was also true. A bare perusal of the aforesaid provision, along with position of law laid down and emphasized by the Hon ble Supreme Court, would show that the petitioners in the present case were entitled in law to seek stay of proceedings in the pending appeal before the Appellate Court, while pursuing the application for setting aside ex-parte decree under Order 9 Rule 13 of the CPC. It is clear that if the appeal proceeds and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners claimed that, in terms of the settled position of law, their application for stay ought to have been allowed by the aforesaid Appellate Court, since their application under Order 9 Rule 13 of the Civil Procedure Code, 1906 (CPC), filed before the Trial Court for setting aside ex-parte decree was pending. By relying upon explanation to the said provision, the petitioners claimed that if their appeal stands disposed of, the application for setting aside ex-parte decree under Order 9 Rule 13 of the CPC would be rendered infructuous, thereby causing grave prejudice to them. The respondent No.1 is the original plaintiff/decree holder, on whose behalf it is contended before this Court that the Appellate Court was justified in refusing to stay the proceedings in the appeal, in view of the conduct of the petitioners and that in the interest of justice, no interference was warranted in the impugned order. (4) Since much emphasis has been placed on behalf of respondent No.1 on the facts of the present case which reflect the conduct of the petitioners, it is necessary to refer to the facts leading upto filing of the present writ petition. (5) The respondent No.1 filed Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings in appeal remained pending. An interim order was passed in the said proceedings. (7) The appeal as well as application for setting aside ex-parte decree remained pending and after more than two years, on 13/02/2017, the petitioners sought stay of the appellate proceeding, on the ground that if appeal was disposed of, as per explanation to Order 9 Rule 13 of the CPC, their application for setting aside ex-parte decree would be rendered infructuous. The said application was rejected by the impugned order and the petitioners are before this Court. (8) Mr.M.P.Khajanchi, learned counsel appearing for the petitioners submitted that as per settled position of law, the petitioners were entitled to simultaneously file both the proceedings i.e. application for setting aside of ex-parte decree and the appeal challenging the decree. It was submitted that a perusal of explanation to Order 9 Rule 13 of the CPC would show that if the appeal filed by the petitioners stood disposed of, no application under the said provision for setting aside ex-parte decree would lie. According to the learned counsel for the petitioners, this would render the application for setting aside decree fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed their written statement on record. On this basis it was submitted that the writ petition deserved to be dismissed. (10) Heard learned counsel for the rival parties and perused the material on record. A perusal of Order 9 Rule 13 of the CPC shows that it affords an opportunity to a defendant to apply to the Court for setting aside ex-parte decree by satisfying the Court that in the facts of the case, such an ex-parte decree could not have been passed. There cannot be dispute about the position of law that a defendant who has suffered an ex-parte decree can simultaneously invoke two remedies, firstly, by filing an application for setting aside ex-parte decree under Order 9 Rule 13 of the CPC and secondly, by filing an appeal under Section 96 of the CPC. (11) This position of law has been recognized in all the three judgments relied upon, on behalf of the petitioners. But, it was observed by the Hon ble Supreme Court in the case of Rani Choudhary (supra) that as per explanation to Order 9 Rule 13 of the CPC, after the appeal filed by the defendant against an exparte decree stood disposed of, it constituted sufficient reason for a ban on proceeding in an application for se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after, by indulging in delaying tactics. The petitioners filed their written statement before the Trial Court more than eight months after having been served. Thereafter, they failed to participate in the proceedings before the Trial Court. Therefore, it was not as if they could not even appear before the Trial Court for want of service. The Trial Court passed ex-parte decree against them on 27/06/2009 and after being served before the Executing Court in June 2011 and December 2011, the petitioners again failed to appear before the Executing Court. As a consequence, they were proceeded ex-parte even before the Executing Court. It was only on 09/07/2013 that the petitioners chose to appear before the Executing Court and filed their objections, which were rejected on 12/08/2013 and 05/02/2014. It took the petitioners, a further eight months to file application for setting aside ex-parte decree on 01/10/2014 and more than ten months to file appeal before the Appellate Court on 16/12/2014. The appeal was filed along with an application for condonation of delay of 1970 days. There is no dispute about the fact that even the application for condonation of delay is yet to be decided and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1. (19) In view of the above, considering the position of law pertaining to explanation to Order 9 Rule 13 of the CPC, this Court finds that the impugned order cannot be sustained. Accordingly, it is set aside. The application Exh.17 filed on behalf of the petitioners before the Appellate Court is allowed and the proceedings in Regular Civil Appeal No. 134/2015, pending before the Appellate Court are stayed till decision of the application for setting aside ex-parte decree bearing MJC No.213/2014, pending before the Court of 4th Civil Judge, Senior Division, Chandrapur. (20) At the same time, this Court directs the petitioners to handover possession of the suit property to the respondent No.1 within four weeks from today. The respondent No.1 shall maintain account of the proceeds earned from the suit property upon entering possession of the same in terms of this order. The respondent No.1 shall submit account annually before the Courts below in the pending proceedings. It is directed that such handing over of possession to respondent No.1 shall be subject to the result of said pending proceedings. It is made clear that if adverse orders are passed against respondent No.1 in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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