Order 9 Rule 13 CPC | Limitation Must Be Decided Before Setting Aside Ex Parte Decree, Failure A Jurisdictional Error: Allahabad High Court

The Allahabad High Court has held that a court hearing an application to set aside an ex parte decree must decide the question of limitation first, and allowing an application filed 21 years late without any finding on the cause of the delay is a jurisdictional error. It held that until the delay is condoned there is no application before the court in the eye of law.

Order IX Rule 13 of the Code of Civil Procedure, 1908 requires a court to set aside an ex parte decree if the defendant satisfies it that the summons was not duly served, or that he was prevented by sufficient cause from appearing.

Section 3 of the Limitation Act, 1963 provides that every suit, appeal and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

The bench of Justice J.J. Munir and Justice Indrajeet Shukla held,

“It is well settled that the issue of condonation of delay must be decided before the Court proceeds to pass any interim or substantive order on the merits. Until the delay is condoned, there is, in the eye of law, no constituted appeal, application or suit, having regard to the mandate of Section 3 of the Act, 1963.”

The parties married in 1981 according to Hindu rites. The husband sued for divorce before the Civil Judge, Ballia on the ground of adultery. By order dated 13.08.1990, the Trial Court recorded that the acknowledgment of the summons had been received back, held service on the wife sufficient and directed the suit to proceed ex parte. A decree of divorce was passed ex parte on 17.12.1990.

In 2011, the wife applied under Order IX Rule 13 CPC to have the decree set aside. No application under Section 5 of the Limitation Act seeking condonation of delay accompanied it at the outset, though a separate one was filed later. The husband was put to notice but did not appear, and on 26.11.2019 the Additional Principal Judge, Family Court, Ballia allowed the application ex parte and set aside the 1990 decree. The husband then appealed under Section 19 of the Family Courts Act, 1984.

He argued that the Trial Court could not have allowed the application without condoning a delay of about 21 years against a prescribed period of 30 days, and the order of 13.08.1990 holding service sufficient had never been challenged. It was submitted that the wife had constructive knowledge of the decree, having herself filed a complaint under Section 494 IPC stating that he had remarried.

The wife, claiming to be an illiterate woman, submitted that the order dated 13.08.1990 did not disclose upon whom the summons had been served, or whose signature or thumb impression appeared on the acknowledgment, and substituted service was never resorted to. She submitted that the missing delay condonation application had since been filed, and 'sufficient cause' must receive a liberal construction.

The Court observed that the Trial Judge had allowed the application without adverting even to a single word on the point of limitation, ignoring the cause of delay set out in both applications.

Relying on Thirunagalingam v. Lingeswaran, Mool Chandra v. Union of India and Surendra G. Shankar v. Esque Finamark Pvt. Ltd., it held that delay cannot be condoned as an act of generosity, that it is the cause of the delay and not its length which must be examined, and the merits cannot be reached until the delay is condoned.

“Delay of a few days cannot be condoned if sufficient cause is not disclosed explaining it, but even a massive delay may be condoned if reasons pass the muster of 'sufficiency of cause'.”

It held that the Trial Court appeared to have been swayed by the principle that courts should lean in favour of deciding a matter on merits rather than shutting a party out on technicalities. While there could be no quarrel with that principle, the Court held, the law of limitation rests on public policy and the finality of litigation, and is not a mere technical defence.

The Court further held that the Trial Judge had not dealt with the wife's challenge to the service of summons. It held that since she had rested her case on that limb, he was bound to examine the acknowledgment on record and decide whether the deemed service could be sustained. No such enquiry was conducted.

“The sine qua non for exercise of jurisdiction under Order IX Rule 13 CPC is non service of summons or prevention by any sufficient cause in appearance before the Court. Unless these twins' conditions, though in alternate, are satisfied, no ex-parte decree can be set aside.”

On whether such an application must necessarily be accompanied by a separate application under Section 5 of the Limitation Act, the Court held that the question did not arise, the wife having subsequently filed one. It noted the decision of the Supreme Court in Dwarka Prasad (D) through LRs v. Prithviraj Singh, where it was held that a separate application is not required if sufficient explanation emerges from a bare reading of the application itself.

“The order passed by trial Court is completely cryptic and laconic, as it does not record any satisfaction with respect to explanation for the delay and further there is no remark/mention that whether summons were duly served or not, before it proceeded to pass the ex-parte decree dated 17.12.1990.”

With both sides defending orders passed ex parte, the Court called it a peculiar and unfortunate situation in which it had to decide which of the two would advance the cause of justice. It set aside the order dated 26.11.2019 and restored the application under Order IX Rule 13 CPC, along with the delay condonation application, to the Trial Court for a fresh decision within two months.

The appeal was allowed.

Case Title: L v. S 2026 LiveLaw (AB) 693

Citation: 2026 LiveLaw (AB) 693

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