Order IX Rule 13 CPC Application Not Barred By Dismissal Of Appeal Against Ex-Parte Decree : Supreme Court

The Supreme Court on Wednesday (April 1) observed that the filing of an appeal against an ex-parte decree would not bar the filing of an application for setting aside the ex-parte decree under Order IX Rule 13 Code of Civil Procedure (CPC).

The Court explained that the scope of appeal under Section 96 CPC and the application under Order IX Rule 13 was different. While in the former, the merits of the decree will be examined, in the latter, one can seek setting aside of the decree by showing sufficient reasons for non-appearance.

“The settled principle of law is that the scope of proceedings under Section 96 of the Code of Civil Procedure and Order IX Rule XIII CPC are distinct. Order IX Rule XIII CPC confers a wider jurisdiction, enabling the applicant to demonstrate sufficient cause for non-appearance and seek setting aside of an ex parte decree.”, observed a bench of Justice Sanjay Karol and Justice Augustine George Masih.

The bench set aside the Madhya Pradesh High Court's Gwalior Bench order passed in revisional jurisdiction, which had declined to interfere with the subordinate courts' findings regarding the non-maintainability of the application under Order IX Rule 13 CPC merely because an unsuccessful appeal had already been preferred against the ex-parte decree

The dispute arose from succession proceedings initiated after the death of one-Omprakash Maheshwari. His daughters from the first marriage obtained a succession certificate by claiming themselves to be the sole legal heirs, without disclosing the existence of the second wife and minor son.

The Appellant No.1, being a minor son from the second wife, was not impleaded in the proceedings despite the respondent daughters being aware of his existence. No guardian was appointed to represent his interests. The certificate was granted ex parte.

After attaining majority, the minor, along with his mother-Appellant No.2 (second wife) Malti Maheswari, challenged the ex parte order under Order IX Rule XIII CPC. However, the application was rejected by the trial court, first appellate court, and High Court on the ground that the mother had already participated in appellate proceedings, thereby barring recourse to Order IX Rule XIII CPC.

Aggrieved, son and second wife of the deceased, appealed to the Supreme Court.

Setting aside the impugned decisions, the judgment authored by Justice Karol observed that the succession proceedings was vitiated as the certificate was issued ex-parte, without impleading the Appellants in the proceedings.

“…the minor was never impleaded as a party in the succession proceedings, thereby depriving her of an opportunity to be heard.”, the court observed.

The Court said that mere dismissal of an appeal preferred by the Appellant No.2 against ex-parte certificate, while his son-Appellant No.1 was minor, would not preclude them from seeking the setting aside of the ex parte certificate under Order IX Rule 13 of CPC.

The Court reasoned that the remedy under Order IX Rule 13 of CPC operates distinctly, and is of wide amplitude, enabling the applicant to demonstrate sufficient cause for non-appearance and seek setting aside of an ex parte decree.

“Where an application is defective or material facts have been suppressed or misstated, the certificate issued pursuant thereto is liable to be revoked under Section 383 of the (Indian Succession) Act.”, observed the Court, while quashing the succession certificate issued on defective and incomplete facts.

Minor not expected to respond to notice

The Supreme Court observed that the finding of the learned Additional District Judge, in the order dated 10.01.2019, to the effect that the minor could have, upon publication of the public notice, impleaded himself as a party and raised objections, was "wholly erroneous and perverse". The Court noted that, being a minor at the relevant time, appellant No. 1 was under a legal disability and was incapable of taking such steps in law.

The Court further observed that the respondents were fully aware of the existence of appellant No. 1 as one of the legal heirs, yet no steps were taken to secure the appointment of a lawful guardian to represent the minor in the proceedings, as required by law. It added that it was only upon attaining majority that appellant No. 1 acquired the legal capacity to challenge the proceedings in question and consequently instituted the present action.

The Court also noted that there was nothing on record to indicate any collusion between the minor and his mother.

Thus, the Court set aside the ex parte succession certificate and restored the proceedings for fresh adjudication. It directed the concerned court to decide the matter expeditiously, preferably within one year.

The appeal was allowed.

Cause Title: DEEPESH MAHESWARI AND ANR. VERSUS RENU MAHESWARI AND ORS

Citation : 2026 LiveLaw (SC) 317

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Appearance:

For Petitioner(s) : Mr. Rajiv Srivastava, Adv. Ms. Garima Srivastava, Adv. Mr. Arpit Shukla, Adv. Ms. Gargi Srivastava, AOR

For Respondent(s) :Mr. Gaurav Dhingra, AOR Mr. Sunny Choudhary, AOR Mr. Mayur Chaturvedi, Adv. Mr. Ayush Singh, Adv.