In, G.N.R. Babu @ S.N. Babu vs Dr. B.C. Muthappa & Ors. SC has held that an appeal under Section 96 of CPC against ex parte decree, application under Rule 13 of Order IX of CPC will not be maintainable. However, When it is shown that Ex-Parte decree is not valid then appellant can challenged the same without even availing the remedy under Rule 13 of Order 1X of CPC.
Facts
The first respondent who is the original plaintiff, filed a suit in the City Civil Court at Bangalore (now Bengaluru) for a declaration that he was the absolute owner of the suit property. Apart from claiming a declaration of ownership, the first respondent contended that a structure erected by the appellant on the suit property was illegal and therefore, a decree was sought for removal of the structure. The learned Judge of the City Civil Court at Bangalore, by his judgment passed a declaratory decree by declaring the first respondent as the owner of the suit property.
Aggrieved by the same, The appellant, taken an exception to the judgment and order passed by the High Court of preferred under Section 96 of the Code of Civil Procedure, 1908 (for short ‘CPC’).
Contention Made ;
Appellant: That the issue regarding the failure to serve the suit summons can be agitated only in an application filed for setting aside ex parte decree by invoking Rule 13 of Order IX of CPC. Further, that on the basis of the record of the suit, the appellant could always point out that the service of summons was not affected or that it was otherwise illegal to proceed ex-parte against him.
Respondent: That the third respondent Bangalore Development Authority was the owner of the suit property and that the first respondent is the allottee of the suit property from the third respondent.
That there is a concurrent finding of the trial court and High Court that the first respondent has established his title and ownership over the suit property and that the building constructed thereon is completely illegal.
Court Observation
The Division Bench of Supreme Court of India observed that, an appeal under Section 96 of CPC against ex parte decree, application under Rule 13 of Order IX of CPC will not be maintainable.
That explanation to Rule 13 of Order IX of CPC lays down that where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than withdrawal, application for setting aside ex parte decree will not lie.
Further SC observed the question as when the defendant did not avail the remedy under Rule 13 of Order IX of CPC, whether it is open for him to agitate in the regular appeal against the decree that the trial court had no justification for proceeding ex parte against the appellant.
In Such a case, though appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for his evidence before the trial court but he can always argue on the basis of the record of suit.
Court Judgment ;
The SC while partly allowing the present appeal has held that record shows that an attempt to serve summons by the regular mode failed as the premises of the appellant were found to be locked. Without verifying whether the address of the appellant, as shown in the cause title of the suit was correct, summons was ordered to be served through Registered Post AD. There was no warrant for proceeding ex parte against the appellant.
Case: G.N.R. Babu @ S.N. Babu vs Dr. B.C. Muthappa & Ors.
Citation: APPEAL NO. 6228 OF 2022
Bench: Justice Ajay Rastogi & Justice Abhay S. OKA
Decided: 6th September 2022.
Read Judgment;
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