Doctrine Of Merger Vis-à- Vis Order 9 Rule 13 Explanation

HISTORY OF THE PROVISION

Procedures analogous to ex parte proceedings can be found as far back as Roman law. The provision regarding setting aside of an ex parte decree first found it place under section 119 of the 1859 code. After 1859 code was repealed, it was covered under section 108 of 1877 code. Under the 1882 code it was covered under section 108. It finally found it's way in the present code of 1908 under order 9 rule 13. For the benefit of readers order 9 rule 13 is reproduced below –

Now coming to the heart of the matter, which is the explanation appended to order 9 rule 13, it was introduced by Act 104 of 1976, s.59 explanation. At this juncture , it would be apposite to ascertain what weighed with the law commission that it recommended insertion of an explanation in it's 54^th report.

REASONS FOR THE INCLUSION OF EXPLANATION

The pertinent question which was in front of the law commission was whether an application for setting aside an ex parte decree can be entertained by the trial court, after an appeal against the ex parte decree has been dismissed summarily by the appellate court? The commission noted a difference of opinion amongst the various high courts regarding this issue. In order to resolve the issue, the commission recommended that an explanation needs to be added to order 9 rule 13 CPC. The recommendation of the law commission reads thus^[1] –

“Explanation- where there has been an appeal against the decree passed in the absence of the defendant, and the appeal has been disposed of, no application under this rule shall lie in respect of that decree”

It would be apposite to note here that, though the recommendation found it's way in the code by the 1976 amendment, but not exactly in the same words as used by the law commission. In order to clear the air, the legislature consciously added the words “on any ground other than the ground that the appellant has withdrawn the appeal”. The effect of which is that, no matter on what ground the appeal is dismissed by the appellate court, apart from appellant withdrawing his appeal, the decree of the trial court gets submerged into the appellate decree. In view of which trial court looses it's jurisdiction upon the decree and hence cannot entertain an application under order 9 rule 13.

The scope of the explanation first fell for consideration before the Supreme Court in the case of Rani Choudhary v. Lt Suraj Jit Choudhary^[2]. Justice R.S Pathak , as he then was, speaking for a two-judge bench discerned the reasons for enacting the explanation. The observation of the court is worth noting, the observation reads thus:

“The legislative attempt incorporated in the explanation was to discourage a two pronged attack on the decree and confine the defendant to a single course of action.”

APPLICATION OF THE EXPLANATION vis-à-vis ONE DEFENDANT

Every law is best understood when applied to practical situations. So, in order to better understand the application of the rule let us take an illustration- A files a civil suit against B. B ,after due summons were served on him, does not appear and contest his case at the first hearing ,court orders the suit to be heard ex parte (proceeding under order 9 rule 6(1)(a)).A , prima facie proves his case , and obtains a decree in his favour. Now, let us see what are the options available to the defendant who was proceeded ex parte. B can file an appeal under section 96(2) of the CPC, and at the same time he can also avail the remedy under order 9 rule 13 CPC. The scope and ambit of both the proceedings differ. When an ex parte decree is appealed against , the appellate court can hear the case on merits and give an appropriate judgment. Conversely, under the proceedings of order 9 rule 13 , the inquiry is not on the merits of the case, but on –

1. Whether the summons was not duly served; or
2. Whether he was prevented by any sufficient cause from appearing when the suit was called on for hearing.

On the satisfaction of either of the condition the court shall set aside the ex parte decree. Let us examine some situations:

1. If B avails both the options simultaneously, his application under order 9 rule 13 would be rendered infructuous if his appeal is decided (on any ground other than withdrawal of the appeal by the appellant) before the application.
2. If B files an appeal, and his appeal is decided (on any ground other than withdrawal of the appeal by the appellant), he cannot now avail the option of filing an application under order 9 rule 13 because of the explanation.

In the above two situations, the doctrine of merger applies, and the decree of the trial court merges into that of the appellate court.

APPLICATION OF THE EXPLANATION vis-à-vis MORE THAN ONE DEFENDANT

Moving ahead, let's take another illustration, to better appreciate the application of the explanation to practical situations. A files a suit against B and C. It transpires that, B appears at the first hearing and contest the suit, conversely C does not contest the suit, even after the summons was duly served. The court decides to proceed the suit ex parte against C. After considering all the evidence, the court decrees the suit against both the defendants. It is pertinent to note here that the decree is ex parte only against C and not against B. Now, let's take a situation where B who contested the suit files an appeal from the decree, and also makes C as respondent in the appeal. After considering the contentions of B, the appeal is dismissed by the appellate court.

Now, a focal issue arises here, whether C after such dismissal of appeal can file an application under order 9 rule 13 for setting aside the decree? In other words, can the decree which is ex parte against C merges into that of appellate court, inspite of the fact that C has not appealed therefrom, because of the explanation appended to order 9 rule 13? There cannot be a straight answer to the query. The answer lies in the backdrop in which the explanation was enacted and the language which is used in the explanation. The word used in the explanation is “where there has been an appeal against a decree passed ex parte under this rule”. The main emphasis is on the words decree passed ex parte. In the above illustration, decree cannot be said to have been passed ex parte against defendant B, because he contested the suit, and decree was passed against him only after hearing his side. So, when he appealed from the decree, it is evident that C would not be barred from agitating his grievance under order 9 rule 13 even if an appeal filed by B is dismissed. The mischief of the explanation won't be attracted in that case. Guidance for the above stated construction can be taken from the judgment of the Supreme Court in Bank of India v. M/s Mehta brothers & ors^[3]. The Supreme Court in this case was interpreting the first proviso appended to order 9 rule 13 , while doing so , it observed that the legislature has consciously used the word “decree” and not “ex parte decree” in the first proviso, the consequence of which is that a decree passed in toto(which is ex parte against some and not against the others) can be set aside and not just a decree which is passed ex parte against the defendant. Applying the same logic to the explanation, the word used here are “decree passed ex parte” and not just “decree”.In effect the explanation cannot be construed as barring the non – contesting defendant who has not appealed against his ex parte decree from pursuing the remedy provided under order 9 rule 13 even if the appeal filed by the other defendant is dismissed by the appellate court.Now, can it be said that it is a universal rule. No, is the answer. It would depend on the nature of the decree passed in the suit, whether it is joint and indivisible or whether it is separable.

Let us take two situations in the above said illustration-

1. Suppose the decree which is passed in the above stated illustration against both B and C is joint and indivisible, and B files an appeal from the decree. The appellate court dismisses his appeal. If C is given an option to file an application under order 9 rule 13 under this situation and trial court also comes to a decision that the application should be allowed.Still the trial court cannot entertain such an application due to the fact that the decree is joint and indivisible it has to be set aside against both the defendants otherwise it would amount to passing of contradictory decrees which is
   impermissible in law^[4]. The other impediment which works against the trial court is the first proviso attached to order 9 rule 13, which says that decree can be set aside against other defendants also. But it should be kept in mind that decree of trial court against B has already merged into the decree of appellate court, so the trial court cannot set aside the decree of appellate court. In a consequence decree against C also cannot be set aside.
2. Now in the same above stated illustration take a situation that decree passed against both B and C is separable. Now, there would be no impediment for the trial court to allow the application of C because the first proviso to order 9 rule 13 won't be attracted. It won't amount to two conflicting decrees. It also cannot be said that the ex parte decree has submerged into that of appellate court because of the explanation appended to order 9 rule 13, just because the appeal filed by B has been dismissed by the appellant court. At the cost of repetition, it is reiterated that the whole decree is not ex parte, but it is ex parte only against C and not against B.

It would be apposite here to mention a judgment^[5]of Calcutta High court which was decided way back in 1924. The main question posed before the bench was whether the application under order 9 rule 13 filed by an ex parte defendant could be allowed, even after the appeal against the decree, which was filed by another defendant and in which that ex parte defendant was also made a respondent, was dismissed? In other words can it be said that ex parte decree also merged with the appellate court decree? Justice mukherji, as he then was, penning down his view, after scanning the precedents, culled out various principles governing the field which could be reproduced here-

1. When a defendant against whom ex parte decree is passed applies under order 9 rule 13 to set it aside, and at the same time prefers appeal against it, then notwithstanding such pendency of appeal trial court can hear the application under order 9 rule 13 cpc.
2. When the ex parte decree has been confirmed or otherwise disposed of on appeal the court which passed the ex parte decree no longer retains jurisdiction to entertain application under order 9 rule 13, even if the application was filed before the filing of appeal.
3. The same principle would hold good, even if the appeal has been preferred by a party other than the defendant against whom the decree was passed ex parte, provided the decree was one and indivisible.

The judge observed that answer to the question whether the ex parte decree is deemed to be merged into that of appellate court would depend on the scope of the appeal. It would not be out of place to refer to a latest judgment^[6] of Supreme Court on this issue. Shorn of unnecessary details, the relevant facts of the case were - two daughters (applicants) of a deceased person applied for grant of succession letter under section 372 of the Indian succession act, 1925 (ISA) for claiming retiral benefits of their father. A lady (herein after 'X') who alleged that she was the wife of the deceased was also impleaded as a defendant along with electricity distribution company (herein after 'Y'). The succession certificate was granted by the trial court, by proceeding ex parte against X. Against this order, Y preferred an appeal in which X was also made a respondent. The appeal was dismissed. Thereafter, X and her minor son preferred an application under order 9 rule 13 CPC, which was dismissed by the trial court and further upheld by the appellate court in appeal, and by the high court in revision. The core question posed before the Supreme Court was whether the application under order 9 rule 13 was maintainable even after the appeal was dismissed? The Apex court placing reliance on section 383 ISA, observed that the certificate granted by the trial court deserved to be set aside because it was granted under the guise of suppression of material facts, and thereby allowed the setting aside of ex parte decree. Now, this judgment does not lay down a universal rule that even after the appeal is dismissed against the decree, still application under order 9 rule 13 can be entertained. There are two reasons for it-

1. The present case pertained to proceedings under part X of the ISA. The proceedings under which are of summary in nature. The certificate granted under it is not final and it can be revoked anytime under section 383 ISA if the grounds contained in it are satisfied. Succession certificate is not akin to a decree, because they do not conclusively determine the rights of the parties^[7].
2. Doctrine of merger is not of universal application, one of the exception being fraud. Fraud unravels everything
   [8]. In this case the court clearly highlighted that certificate was granted under the guise of suppressing material facts, in view of which it cannot be said that the order of trial court granting the certificate merged into that of the appellate court order. So, trial court still entertained jurisdiction over the matter because of section 383 ISA.

Before parting with the article, it would be worthwhile to remember the famous observation^[9] of Justice Chagla, as he then was, about the CPC, “The more you study the civil procedure code, the more you realise what an admirable piece of legislation it is”.

1. 54^th report of law commission of India (Page 140). ↑

2. 1982 INSC 64. ↑

3. 2008 INSC 1079. ↑

4. Suresh Chandra v. Parasram 2025 INSC 873. ↑

5. Kalimuddin Ahamed v. Esabakuddin and ors, AIR 1924 CAL 830. ↑

6. Deepesh Maheshwari and anr v. Renu Maheshwari and ors 2026 INSC 306. ↑

7. Refer section 387 of Indian succession act, 1925. ↑

8. Lazarus Estates ltd. v. Beasley (1956) 1 Q.B. 702. ↑

9. In his foreword to Soonavala's Treatise on the Law of execution proceedings (1958). ↑