Application Under Order IX Rule 13 CPC Can Be Allowed Only When Sufficient Cause Is Made Out To Set Aside Ex­ Parte Decree: Supreme Court

Application under Order 9 Rule 13 of the Code of Civil Procedure cannot be automatically granted and can be allowed only when sufficient cause is made out to set aside the ex­ parte decree, the Supreme Court observed.

In this case, the tenant had filed an application to set aside an ex-parte decree against him which was dismissed by the Trial Court on the ground that no deposit was made by the tenant as required by Section 17 of the Provincial Small Cause Courts Act, 1887 along with the said application. The High Court remanded the matter back to the trial court for reconsideration of tenant's application under Order 9 Rule 13 CPC and Section 5 of the Limitation Act in accordance with law.

In appeal against this High Court order, the bench comprising Justices Ashok Bhushan and R. Subhash Reddy noted as follows: 1) In the application filed by the tenant on 25.08.1998 under Order 9 Rule 13, there was no compliance of Section 17 of 1887 Act and the application was incompetent. 2) The respondent ­tenant had not deposited the entire amount due on 25.08.1998 even under Section 30(2) of Act No.13 of 1972. 3) The deposit of rent under Section 30(2) of the Act No.13 of 1972 in the present case can not be treated to be deposit for the purposes of proviso under Section 17 of the Act, 1887.

"Even in the case where there is a compliance of proviso to Section 17, the application filed under Order 9 Rule 13 to set aside the decree passed ex­ parte or for review of the judgment cannot be automatically granted. The compliance of proviso to Section 17 is a Precondition for maintainability of application under 42 Order 9 Rule 13. Application under Order 9 Rule 13 can be allowed only when sufficient cause is made out to set aside the ex ­parte decree. The present is a case where no sufficient cause was made out to set aside the ex parte decree.", the bench added.

Observing thus, the bench concluded that the tenant had not made out any sufficient ground to allow the application under Order 9 Rule 13 and the High Court committed error in interfering with the order of the trial court rejecting such application which was also confirmed by the District Judge. The court also added that requirement under proviso to Section 17 can neither be said to be hyper technical nor pedantic but the same was the requirement of law and condition precedent for maintainability of application under Order 9 Rule 13. 

Allowing the appeal, the bench directed the Executing Court to execute the decree and put the appellant in possession along with the payment of entire decretal amount up to date within a period of three months from the date the copy of judgment is produced before the Executing Court.

Case: Subodh Kumar Vs. Shamim Ahmed [CA 802-803 of 2021]

Coram: Justices Ashok Bhushan and R. Subhash Reddy

Counsel: Sr. Adv R.B.Singhal, Adv Dr. Sumant Bharadwaj

Citation: LL 2021 SC 134 

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