Kerala High Court
Devaki vs Chandrika Ayyappan on 20 February, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Thursday, the 20th day of February 2025 / 1st Phalguna, 1946
OP(C) NO. 519 OF 2024
IA 7/2023 IN OS 666/2019 OF MUNSIFF MAGISTRATE COURT, KOTHAMANGALAM, ERNAKULAM
PETITIONERS/PETITIONERS/DEFENDANTS:
1. DEVAKI AGED 60 YEARS W/O KURUMBAN RESIDING AT PUTHENPURA HOUSE,
KOTTAPADY KARA , KOTTAPPADY VILLAGE , KOTHAMANGALAM TALUK, PIN -
686692
2. VALSA AGED 40 YEARS D/O DEVAKI ,RESIDING AT PUTHENPURA HOUSE,
KOTTAPADY KARA , KOTTAPPADY VILLAGE , KOTHAMANGALAM TALUK, PIN -
686692
3. RETHY AGED 38 YEARS D/O DEVAKI ,RESIDING AT PUTHENPURA HOUSE,
KOTTAPADY KARA , KOTTAPPADY VILLAGE , KOTHAMANGALAM TALUK, PIN -
686692
4. REJANI AGED 32 YEARS W/O KANNAN, RESIDING AT PUTHENPURA HOUSE,
KOTTAPADY KARA , KOTTAPPADY VILLAGE , KOTHAMANGALAM TALUK, PIN -
686692
BY ADV S.SUJINI
RESPONDENT/RESPONDENT/PLAINTIFF:
CHANDRIKA AYYAPPAN AGED 53 YEARS W/O AYYAPPAN @ AYYAPPANKUTTY
RESIDING AT CHERANGANAL ( VETTIKKAMATTOM )PATTARUMALIL HOUSE,
KOTTAPPADY KARA, KOTTAPADY VILLAGE, KOTHAMNGALAM TALUK, PIN - 686692
BY ADV Sachin Ramesh
Sri Jacob P. Alex,Amicus Curiae
This OP(C) having come up for orders on 20.02.2025, upon perusing
the petition, the court on the same day passed the following;
VIJU ABRAHAM , J.
===========================
OP(C) Nos. 519 of 2024 & 972 of 2024
============================
Dated this the 20th day of February, 2025
ORDER
I have heard the respective Counsels appearing in
these cases at length and also Sri. Jacob P. Alex, the learned
Amicus Curiae. The question that has come up for consideration
in these cases is as to whether there is any time limit prescribed
for setting aside an order under Order IX Rule 6(a) CPC.
2. Before proceeding further in the adjudication of
dispute raised it is profitable to refer to the legal provisions.
Order IX Rule 6 CPC deals with the procedure when only the
plaintiff appears, and the same is extracted below:-
“6. Procedure when only plaintiff appears.–(1)
Where the plaintiff appears and the defendant does not
appear when the suit is called on for hearing, then–
[(a) When summons duly served.–if it is proved
that the summons was duly served, the Court may
make an order that the suit shall be heard ex parte;]
(b) When summons not duly served.–if it is not
proved that the summons was duly served, the Court
shall direct a second summons to be issued and served
on the defendant;
(c) When summons served but not in due time.–if
it is proved that the summons was served on the
OP(C) Nos. 519 of 2024 & 972 of 2024 2defendant, but not in sufficient time to enable him to
appear and answer on the day fixed in the summons,
the Court shall postpone the hearing of the suit to a
future day to be fixed by the Court, and shall direct
notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiff’s default that
the summons was not duly served or was not served in
sufficient time, the Court shall order the plaintiff to pay
the costs occasioned by the postponement.”
Order IX Rule 7 CPC deals with Procedure where the
defendant appears on the day of the adjourned hearing and
assigns good cause for previous non-appearance, and the
same is extracted below:-
“7. Procedure where defendant appears on day of
adjourned hearing and assigns good cause for
previous non-appearance.–Where the Court has
adjourned the hearing of the suit, ex parte, and the
defendant, at or before such hearing appears and
assigns good cause for his previous non-appearance, he
may, upon such terms as the Court directs as to costs
or otherwise, be heard in answer to the suit as if he
had appeared on the day fixed for his appearance.”
Order IX Rule 13 CPC deals with setting aside decree ex-parte
against the defendant which reads as follows:-
“13. Setting aside decree ex parte against
defendant.–In any case in which a decree is passed
ex parte against a defendant, he may apply to the
Court by which the decree was passed for an order to
set it aside; and if he satisfies the Court that the
OP(C) Nos. 519 of 2024 & 972 of 2024 3summons was not duly served, or that he was
prevented by any sufficient cause from appearing when
the suit was called on for hearing, the Court shall make
an order setting aside the decree as against him upon
such terms as to costs, payment into Court or
otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit:
Provided that where the decree is of such a nature that
it cannot be set aside as against such defendant only it
may be set aside as against all or any of the other
defendants also:
[Provided further than no Court shall set aside a decree
passed ex parte merely on the ground that there has
been an irregularity in the service of summons, if it is
satisfied that the defendant had notice of the date of
hearing and had sufficient time to appear and answer
the plaintiff’s claim.]
[Explanation.–Where there has been an appeal against
a decree passed ex parte under this rule, and the
appeal has been disposed of an any ground other than
the ground that the appellant has withdrawn the
appeal, no application shall lie under this rule for
setting aside that ex parte decree.]”
Going by the mandate of Order IX Rule 6(a) CPC, where the
plaintiff appears and the defendant does not appear and the suit
is called on for hearing and when the summons is duly served on
the defendant, the Court may make an order that the suit be
heard ex-parte. Order IX Rule 7 CPC deals with the procedure
when the defendant appears on a day of adjourned hearing and
OP(C) Nos. 519 of 2024 & 972 of 2024 4
has a good cause for previous non-appearance, the Section
mandates that when the Court has adjourned the hearing of this
Court ex-parte and the defendant at or before such hearing
appears and has a good cause for his previous non-appearance,
he may upon such terms as the Court direct as to cost or
otherwise be heard in answer to the suit as if he had appeared
on the day fixed for his appearance. Order IX Rule 13 CPC deals
with setting aside a decree ex-parte against defendants which
provides that when a decree is passed ex-parte against the
defendant he may apply to the Court to set aside the same.
3. In O.P(C) No.519 of 2024 and O.P(C) No.972 of
2024, the application submitted to set aside the ex-parte order
was dismissed for the reason that the same has been filed
belatedly, that too without a petition to condone the delay. The
learned Counsel appearing for the petitioners would contend that
as regards a petition to set aside an ex-parte order filed under
Order IX Rule 7 CPC no time limit is stipulated, and therefore it
need not be accompanied by a petition to condone the delay,
whereas the Counsel for the respondents would submit that the
application has been filed belatedly and such an application
would be governed by Article 137 of the Limitation Act, 1963
(hereinafter referred to as the ‘Act 1963’) the residuary article
OP(C) Nos. 519 of 2024 & 972 of 2024 5
which prescribes a period of three years, and therefore an
application filed belatedly without an application seeking to
condone the delay has been correctly dismissed by the trial
Court.
Article 137 of the Schedule of the Act 1963 is extracted below:
_________________________________________
Part II-Other Applications
_________________________________________
Description of Period of Time from which
application Limitation period begins to
run
137. Any other Three years When the right to
application for which no apply accrues.
period of limitation is
provided elsewhere in
this Division.
4. This Court in C.L. Cleetus v. South Indian Bank
Ltd. and Another [2007 (3) KHC 911] considered a similar
issue and held in paragraph 6 as follows:-
“6. It is difficult to accept Mr. Krishnan Unni’s
arguments in respect of Ext.P1 order. It is true that
there is distinction between applications which are filed
under O.9 R.13 and those filed under O.9 R.7, in that
while the former seeks cancellation of decrees finally
disposing of suits, the latter seeks cancellation of only
orders setting the applicant ex parte, thus preventing
OP(C) Nos. 519 of 2024 & 972 of 2024 6him from participating in further proceedings in the
suit. It is also true that unlike applications under O.9
R.13, there is no article in the Limitation Act providing
any specific period of limitation for applications under
O.9 R.7. But Mr. Krishnan Unni’s argument that since
no time limit is specifically provided in the Limitation
Act for filing applications under O.9 R.7, such
applications can be filed at any time cannot be
accepted. Such applications, in my opinion, will be
governed by Art.137, the residuary article which
prescribes a period of three years. Mr. Krishnan Unni’s
argument was that sub-rule (3) of R.105 of 0.21 deals
only with orders finally disposing of execution petitions
and not orders passed at various earlier stages of the
execution proceedings. According to the learned
counsel, the word “application” used in R.105 refers
only to execution petitions and not to execution
applications. The above argument is to be repelled
straightaway since sub-rule (1) of R.105 speaks clearly
of applications “under any of the foregoing rules”, i.e.,
R.1 to R.104 of 0.21. The Civil Rules of Practice which
regulates the procedure and practice of subordinate
civil Courts in the State gives an inclusive definition for
the word “application” which takes in execution
petitions, execution applications, cheque applications
and interlocutory applications, whether oral or written.
R.105 deals with the hearing of applications which can
either be the main execution petition or an execution
application. The Rule says that if the opposite party
who has been issued with notice fails to appear, the
Court shall hear the application ex parte and proceed
to pass any order deemed fit. These orders, according
to me, can be orders finally disposing of the execution
petition or orders deciding any specific issue, say,
OP(C) Nos. 519 of 2024 & 972 of 2024 7regarding the executability of the decree which is often
decided on the basis of objections filed by judgment
debtors in response to notice under R.22 or the liability
for arrest often decided pursuant to notice under R.37
or even settlement of draft proclamation decided in
response to notice under R.66. R.106(1) of 0.21
contemplates cancellation of all types of ex parte
orders passed under R.105(3) and orders for default
passed under R.105(2). It follows therefore that the
period of limitation prescribed by sub-rule (3) of R.106
applies to applications submitted by petitioner for
setting aside ex parte orders passed against him at
any given stage of the proceedings. The position could
have been different under the old R.105 which had
sub-rule (4) also in it. But in view of the existing rule
position, the execution Court has no power to condone
the delay caused in the matter of filing applications
under 0.21 R.106(3). Ext. P1 therefore does not suffer
from any infirmity and is only to be approved.”
The Court in C.L Cleetus‘s case cited supra has held that even
for a petition under Order IX Rule 7 CPC, Act 1963 is applicable
and the relevant Article would be Article 137 of the said Act
which prescribes a period of three years for filing such an
application. A similar view was taken by the Rajasthan High
Court in Ambalal and Others v. Ratan Lal [2017 KHC
5262]. Paragraph 17 of the said judgment reads as follows:-
“17. As no specific limitation has been provided for an
application under R.7 of Order IX under Limitation Act,
the same can be filed within three years, as stipulated
OP(C) Nos. 519 of 2024 & 972 of 2024 8under Art.137 of Limitation Act, 1963.”
5. A Division Bench of this Court in Y. Daniel and
Others v. Annamma and Others [MANU/KE/0205/2012]
while considering a similar matter followed the judgment in C.L.
Cleetus‘s case cited supra and held that the period of limitation
prescribed is three years going by Article 137 of the Act, 1963.
6. This Court as per order dated 11.06.2024 appointed
Sri. Jacob P. Alex as Amicus Curiae to assist the Court. The
learned Amicus Curiae took me to the various judgments on the
point, the earlier of which is Sangram Singh v. Election
Tribunal, Kotah [AIR 1955 SC 425] in which the Apex Court
considered the impact of non-appearance of the defendant on
the date posted for hearing as per the pre-amended Civil
Procedure Code and held in paragraphs 24 to 33 reads as
follows:-
“24. Now to analyse Rule 6 and examine its bearing on
the first hearing. When the plaintiff appears and the
defendant does not appear when the suit is called on
for hearing, if it is proved that the summons was duly
served-
“(a) …the court may proceed ex parte”.
The whole question is, what do these words mean?
Judicial opinion is sharply divided about this. On the
one side is the view propounded by Wallace, J. in
OP(C) Nos. 519 of 2024 & 972 of 2024 9
Venkatasubbiah v. Lakshminarasimham that ex parte
merely means in the absence of the other party, and on
the other side is the view of O’sullivan, J., in Hariram v.
Pribhdas that it means that the court is at liberty to
proceed without the defendant till the termination of
the proceedings unless the defendant shows good
cause for his non-appearance. The remaining decisions,
and there are many of them, take one or the other of
those two views.
25. In our opinion, Wallace, J. and the other Judges
who adopt the same line of thought, are right. As we
have already observed, our laws of procedure are
based on the principle that, as far as possible, no
proceeding in a court of law should be conducted to
the detriment of a person in his absence. There are of
course exceptions, and this is one of them. When the
defendant has been served and has been afforded an
opportunity of appearing, then, if he does not appear,
the court may proceed in his absence. But, be it noted,
the court is not directed to make an ex parte order. Of
course the fact that it is proceeding ex parte will be
recorded in the minutes of its proceedings but that is
merely a statement of the fact and is not an order
made against the defendant in the sense of an ex
parte decree or other ex parte order which the court is
authorised to make. All that Rule 6(1)(a) does is to
remove a bar and no more. It merely authorises the
court to do that which it could not have done without
this authority, namely, to proceed in the absence of
one of the parties. The contrast in language between
Rules 7 and 13 emphasises this.
26. Now, as we have seen, the first hearing is either
for the settlement of issues or for final hearing. If it is
OP(C) Nos. 519 of 2024 & 972 of 2024 10
only for the settlement of issues, then the court
cannot pass an ex parte decree on that date because
of the proviso to Order 15 Rule 3(1) which provides
that that can only be done when
“the parties or their Pleaders are present and none of
them objects”. On the other hand, if it is for final
hearing, an ex parte decree can be passed, and if it is
passed, then Order 9 Rule 13 comes into play and
before the decree is set aside the court is required to
make an order to set it aside. Contrast this with Rule
7 which does not require the setting aside of what is
commonly, though erroneously, known as “the ex
parte order”. No order is contemplated by the Code
and therefore no order to set aside the order is
contemplated either. But a decree is a command or
order of the court and so can only be set aside by
another order made and recorded with due formality.
27. Then comes Rule 7 which provides that if at an
adjourned hearing the defendant appears and shows
good cause for his “previous non-appearance”, he can
be heard in answer to the suit
“as if he had appeared on the day fixed for his
appearance”. This cannot be read to mean, as it has
been by some learned Judges, that he cannot be
allowed to appear at all if he does not show good
cause. All it means is that he cannot be relegated to
the position he would have occupied if he had
appeared.
28. We turn next to the adjourned hearing. That is
dealt with in Order 17 Rule 1(1) empowers the court
to adjourn the hearing and whenever it does so it
must fix a day “for the further hearing of the suit”,
except that once the hearing of the evidence has
begun it must go on from day to day till all the
OP(C) Nos. 519 of 2024 & 972 of 2024 11
witnesses in attendance have been examined unless
the court considers, for reasons to be recorded in
writing, that a further adjournment is necessary.
Then follows Rule 2-
“Where, on any day to which the hearing of the suit is
adjourned, the parties or any of them fail to appear,
the court may proceed to dispose of the suit in one of
the modes directed in that behalf by Order 9 or make
such other order as it thinks fit.”
29. Now Rule 2 only applies when one or both of the
parties do not appear on the day fixed for the
adjourned hearing. In that event, the court is thrown
back to Order 9 with the additional power to make
“such order as it thinks fit”. When it goes back to
Order 9 it finds that it is again empowered to proceed
ex parte on the adjourned hearing in the same way
as it did, or could have done, if one or other of the
parties had not appeared at the first hearing, that is
to say, the right to proceed ex parte is a right which
accrues from day to day because at each adjourned
hearing the court is thrown back to Order 9 Rule 6. It
is not a mortgaging of the future but only applies to
the particular hearing at which a party was afforded
the chance to appear and did not avail himself of it.
Therefore, if a party does appear on “the day to
which the hearing of the suit is adjourned”, he cannot
be stopped from participating in the proceedings
simply because he did not appear on the first or
some other hearing.
30. But though he has the right to appear at an
adjourned hearing, he has no right to set back the
hands of the clock. Order 9 Rule 7 makes that clear.
Therefore, unless he can show good cause, he must
accept all that has gone before and be content to
OP(C) Nos. 519 of 2024 & 972 of 2024 12
proceed from the stage at which he comes in. But
what exactly does that import? To determine that it
will be necessary to hark back to the first hearing.
31. We have already seen that when a summons is
issued to the must state whether the hearing is for
the settlement of issues only or for the final disposal
of the suit (Order 5 Rule 5). In either event, Order 8
Rule 1 comes into play and if the defendant does not
present a written statement of his defence, the court
can insist that he shall; and if, on being required to
do so, he fails to comply―
“the court may pronounce judgment against him, or
make relation to the suit as it thinks fit”. (Order 8
Rule 10).
This invests the court with the widest possible
discretion and enables it to see that they are present
a matter justice is done to both sides; and also to
witnesses on which we shall dwell later.
32. We have seen that if the defendant does not
appear at the the court can proceed ex parte, which
means that it can proceed without a written
statement; and Order 9 Rule 7 makes it clear that
unless good cause is shown the defendant cannot be
relegated to the position that he would have occupied
if he had appeared. That means that he cannot put in
a written statement unless he is allowed to do so,
and if the case is one in which the court considers a
written Rule 10 statement should have been put in,
the consequences entailed by Order 8 Rule 10 must
be suffered. What those consequences should be in a
given case is for the court, in the exercise of its
judicial discretion, to determine. No hard and fast
rule can be laid down. In some cases an order
awarding costs to the plaintiff would meet the ends of
OP(C) Nos. 519 of 2024 & 972 of 2024 13
justice: an adjournment can be granted or a written
statement can be considered on the spot and issues
framed. In other cases, the ends of justice may call
for more drastic action.
33. Now when we speak of the ends of justice, we
mean defendant and to the other side but also to
witnesses and others who may be inconvenienced. It
is an unfortunate fact that the convenience of the
witness is ordinarily lost sight of in this class of case
and yet he is the one that deserves the greatest
consideration. As a rule, he is not particularly
interested in the dispute but he is vitally interested
in his own affairs which he is compelled to abandon
because a court orders him to come to the assistance
of one or other of the parties to a dispute. His own
business has to suffer. He may have to leave his
family and his affairs for days on end. He is usually
out of pocket. Often he is a poor man living in an out
of the way village and may have to trudge many
weary miles on his feet. And when he gets there,
there are no arrangements for him. He is not given
accommodation; and when he reaches the court, in
most places there is no room in which he can wait.
He has to loiter about in the verandah or under the
trees, shivering in the cold of winter and exposed to
the heat of summer, wet and miserable in the rains:
and then, after wasting hours and sometimes days
for his turn, he is brusquely told that he must go
back and come again another day. Justice strongly
demands that this unfortunate section of the general
public compelled to discharge public duties, usually
at loss and inconvenience to themselves, should not
be ignored in the overall picture of what will best
serve the ends of justice and it may well be a sound
OP(C) Nos. 519 of 2024 & 972 of 2024 14exercise of discretion in a given case to refuse an
adjournment and permit the plaintiff to examine the
witnesses present and not allow the defendant to
cross-examine them, still less to adduce his own
evidence. It all depends on the particular case. But
broadly speaking, after all the various factors have
been taken into consideration and carefully weighed,
the endeavour should be to avoid snap decisions and
to afford litigants a real opportunity of fighting out
their cases fairly and squarely. Costs will be
adequate compensation in many cases and in others
the court has almost unlimited discretion about the
terms it can impose provided always the discretion is
judicially exercised and is not arbitrary.”
(underline supplied)
The Apex Court in Sangram Singh‘s case cited supra has held
that when the defendant has been served and has been afforded
an opportunity to appear, then if he does not appear, the Court
may proceed in his absence, but the Court is not directed to
make an ex-parte order, but the Court records in the minutes
that the Court is proceeding ex-parte but that is merely a
statement of the fact and is not an order made against the
defendant in the sense of an ex-parte decree or other ex-parte
order which the Court is authorised to make, and therefore it is
the contention that since no order is contemplated by the Court,
order to set aside the ex-parte order is also not contemplated.
OP(C) Nos. 519 of 2024 & 972 of 2024 15
The Court further considered the impact of the order to proceed
ex-parte and held that said order applies to the particular
hearing at which a party was afforded a chance to appear and
did not avail himself, and therefore if the party does not appear
on the day to which the hearing of the suit is adjourned he
cannot be stopped from participating in the proceedings simply
because he did not appear on the first or some other hearing.
But the Apex Court in the judgment cited supra has also held
that though he has a right to appear at an adjourned hearing, he
has no right to set back the hands of the clock and as per the
provisions of Order IX Rule 7 CPC unless he can show his cause,
the party has to accept all that has gone before and be content
to proceed the stage at which he comes in.
7. The Apex Court in Arjun Singh v. Mohindra Kumar
and Others [AIR 1964 SC 993] was considering whether
dismissal of an application under Order IX Rule 7 CPC to set
aside the ex-parte order would bar as res judicata for hearing an
application under Order IX Rule 13 CPC to set aside an ex-parte
order. The Court in paragraph 14 held as follows:-
“14. It is needless to point out that interlocutory
orders are or various kinds; some like orders of stay,
injunction or receiver are designed to preserve the
status quo pending the litigation and to ensure that
OP(C) Nos. 519 of 2024 & 972 of 2024 16the parties might not be prejudiced by the normal
delay which the proceedings before the court, usually
take. They do not, in that sense, decide in any
manner the merits of the controversy in issue in the
suit and do not, of course, put an end to it even in
part. Such orders are certainly capable of being
altered or varied by subsequent applications for the
same relief, though normally only on proof of new
facts or new situation which subsequently emerge. As
they do not impinge upon the legal rights of parties to
the litigation the principle of res judicata does not
apply to the findings on which these orders are
based, though if applications were made for relief on
the same basis after the same has once been
disposed of the court would be Justified in rejecting
the same as an abuse of the process of court. There
are other orders which are also interlocutory but
would fall into a different category. The difference
from the ones just now referred to lies in the fact that
they are not directed to maintaining the statusquo, or
to preserve the property pending the final
adjudication but are designed to ensure the just,
smooth, orderly and expeditious disposal of the suit.
They are interlocutory in the sense that they do not
decide any matter in issue arising in the suit, nor put
an end to the litigation. The case of an application
under 0. IX, Rule 7 would be an illustration of this
type. If an application made under the provisions of
that rule is dismissed and an appeal were filed
against the decree in the suit in which such
application were made, there can be no doubt that
the propriety of the order rejecting the reopening of
the proceeding and the refusal to relegate the party
to an earlier stage might be convassed in the appeal
OP(C) Nos. 519 of 2024 & 972 of 2024 17and dealt with by the appellate court. In that sense,
the refusal of the court to permit the defendant to
“set the clock back” does not attain finality. But what
we are concerned with is slightly different and that is
whether the same Court is finally bound by that order
at later stages so as to preclude its being
reconsidered. Even if the rule of res judicata does not
apply it would not follow that on every subsequent
day which the suit stands adjourned for further
hearing, the petition could be repeated and fresh
orders sought on the basis of identical facts. The
principle that repeated applications based on the
same facts and seeking the same reliefs might be
disallowed by the court does not however necessarily
rest on the principle of res judicata. Thus if an
application for the adjournment of a suit is rejected, a
subsequent application for the same purpose even if
based on the same facts, is not barred on the
application of any rule of res judicata, but would be
rejected for the same grounds on which the original
application was refused. The principle underlying the
distinction between the rule of res judicata and a
rejection on the ground that no new facts have been
adduced to justify a different order is vital. If the
principle of res judicata is applicable to the decision
on a particular issue of fact, even if fresh facts were
placed before the Court, the bar would continue to
operate and preclude a fresh investigation of the
issue, whereas in the Other case, on proof of fresh
facts, the court would be competent, may would be
bound to take those into account and make an order
comfortably to the facts freshly brought before thecourt.” (underline supplied)
OP(C) Nos. 519 of 2024 & 972 of 2024 18The Apex Court in Arjun Singh‘s case cited supra has held that
an application under Order IX Rule 7 CPC will not bar further
petition on the grounds of res judicata. The Court held that the
nature of adjudication of the Court under Order IX Rule 7 CPC is
directed to ensure the orderly conduct of the proceedings by
penalising the party involved in dilatory tactics to prolong the
litigation and it does not put an end to the litigation nor does it
involve the determination of any issue in controversy in the suit,
and the proceedings are very summary in nature.
8. Yet another aspect to be noted is the finding in C.L.
Cleetus‘s case, Ambalal’s case and Y.Daniel‘s case cited supra
that since no specific limitation has been provided in the Act
1963 for an application under Order IX Rule 7 CPC, the period of
limitation prescribed is 3 years going by Article 137 of the Act
1963. Going by Order IX Rule 6 CPC, when the defendant fails to
appear on the day fixed for appearance, the Court may make an
order that the suit shall be heard ex parte. Order IX Rule 7 CPC
provides that when the defendant appears on the day of the
adjourned hearing and assigns good cause for previous non-
appearance, he may upon such terms as the Court directs as to
cost or otherwise, be heard in answer to the suit as if he had
appeared on the day fixed for his appearance. As I have already
OP(C) Nos. 519 of 2024 & 972 of 2024 19stated in Sangram Singh‘s case cited supra, the Apex Court
has clarified that at this stage the Court is not passing an ex
parte order, and the recording in the proceedings that the Court
is proceeding ex parte is merely a statement of the fact and is
not an order made against the defendant in the sense of an ex
parte decree or other ex parte order. The Court has also held
that the defendant will have the right to appear at the adjourned
hearing but will not have the right to set back the hands of the
clock and unless he can show good cause, he must accept all
that has gone before and he content to proceed from the state
at which he comes in and if he could show good cause, he will be
heard in answer to the suit as if he had appeared on the day
fixed for his appearance. Section 2(b) of Act 1963 defines
“application” to include a petition. Section 3 of the Act 1963
mandates that the bar of limitation will apply to every suit
instituted, appeal preferred and application made after the
prescribed period. So, Act 1963 applies to circumstances in
which an application is to be filed, which includes a petition
going by the definition in Section 2(b). Article 137 of the Act
1963 comes under the Third Division which deals with
applications prescribing the period of limitation and Articles 118
to 136 deal with applications in specified cases and Article 137
OP(C) Nos. 519 of 2024 & 972 of 2024 20also comes under the Third Division, dealing with limitation of
other applications, not mentioned in Part I. Articles 118 to 136
are all cases were an application is required. Take, for example,
Article 118 of the Act 1963 which deals with the application for
leave to appear and defend a suit under summary procedure and
the period of limitation prescribed is 10 days from the date on
which the summons is served. Order XXXVII CPC deals with
summary procedure. Order XXXVII Rule 3 CPC deals with the
procedure for the appearance of the defendant and Clause 5
mandates that the defendant may within 10 days from the
service of such summons for judgment by affidavit or otherwise
disclosing such facts as may be deemed sufficient to entitle him
to defend, apply on such summons for leave to defend such suit,
and leave to defend may be granted to him unconditionally or
upon such terms as may appear to the Court or Judge to be just
and Clause 7 provides that the Court or Judge for sufficient
cause shown by the defendant excuse the delay of the defendant
in entering an appearance or in applying for leave to defend the
suit. Therefore, Articles 118 to 136 deal with cases where
written application is required for consideration of the same for
which a period of limitation is provided. Article 123 deals with an
application to set aside a decree passed ex parte for which also
OP(C) Nos. 519 of 2024 & 972 of 2024 21an application is required to be filed. Likewise, Article 137 also
comes under the Third Division and deals with other applications
which is not provided in Articles 118 to 136. Therefore,
provisions of Article 137 will have application only in cases
where a written application is required. Order IX Rule 7 CPC
does not contemplate even an application and I am of the view
that provisions of Article 137 will not apply in such
circumstances as no period of limitation is prescribed for filing a
petition under Order IX Rule 7 CPC and period of limitation is
applicable only in case of an application filed under Order IX
Rule 13 CPC to set aside an ex parte decree.
9. Going by Section 5 of the Act 1963, any appeal or
application may be admitted after the prescribed period of
limitation if the appellant or the applicant satisfies the Court that
he has sufficient cause for not preferring the appeal or making
the application within such period. Going by Order IX Rule 13
CPC, for setting aside a decree ex parte, the defendant has to
show sufficient cause for his nonappearance. But in Order IX
Rule 7 CPC, when the defendant appears on the day of the
adjourned hearing and assigns good cause for his previous non-
appearance, he may on such terms as the Court directs in
answer to the suit as if he had appeared on the day fixed for his
OP(C) Nos. 519 of 2024 & 972 of 2024 22appearance. What is required as per Section 5 of the Act, 1963
to condone the delay is “sufficient cause” whereas Order IX Rule
7 CPC only mandates to assign “good cause”. In Arjun Singh’s
case cited supra, the Apex Court considered the difference
between “sufficient cause” and “good cause” obtaining in the two
different provisions stated above and has held that the
difference between the two is that the requirement of a “good
cause” is complied with a lesser degree of proof than that of
“sufficient cause”. A similar view was taken by this Court in
Subramania Iyer v. Valsala, 2000 (1) KLT 751.
10. The High Court of Delhi in Delhi Development
Authority v. Shanti Devi and Another [1982 KHC 1528]
held that there is no rule that an application under Order IX Rule
7 CPC is to be filed within 30 days from the date of the order
proceeding ex parte. The Madras High Court in Muthammal
(died) and Others v. B Krishnamurthy Naidu (died) and
Others, (CRP.PD.No.867 of 2017) has considered a similar
issue and relying on the judgment in Sangram Singh’s and
Arjun Singh’s cases cited supra and also considering the
judgment of this Court in C.L. Cleetus‘s case and Y. Daniel’s
case cited supra held that Article 137 of the Act 1963 does not
apply to an application filed under Order IX Rule 7 CPC and that
OP(C) Nos. 519 of 2024 & 972 of 2024 23there is no limitation for an application under the said provision.
The Madras High Court in Rajasekar v. Govindammal (late)
2020 SCC OnLine Mad 18065 was also considering a similar
question as to whether an application under Order IX Rule 7
CPC would be said to be barred by limitation and as to whether
Article 137 of the Act 1963 will apply and held that Article 137 of
the Act 1963 does not apply to an application under Order IX
Rule 7 CPC and the same can be filed at any time before the
judgment is delivered in the suit or proceedings. The High Court
of Madras in Kasturi v. Saravanan @ Sakthi Saravanan
[LAWS(Mad)-2010-4-569], Palani Nathan v. Devanai
Ammal [MANU/TN/0330/1987], Pilla Reddy and Others v.
Thimmaraya Reddy and Others [MANU/TN/0968/1996]
has also taken the similar view.
11. This Court in C.L. Cleetus‘s case has held that in the
case of a petition under Order IX Rule 7 CPC, the relevant Article
in the Act 1963 is Article 137, and the time limit is three years.
Though the same was followed by the Division Bench of this
Court in Y. Daniel‘s case, the Division Bench has not stated any
reasons for entering the said finding but has just simply quoted
the relevant paragraph of the judgment in C.L. Cleetus‘s case
and held that the limitation period is three years as provided
OP(C) Nos. 519 of 2024 & 972 of 2024 24
under Article 137 and disposed of the case. The Division Bench
has not considered whether there is any limitation provided for
filing an application under Order IX Rule 7 CPC.
12. In view of the conflicting decisions on this point by
various Courts, I am of the opinion that the matter requires to
be considered by a larger Bench so as to resolve the said
dispute. Even when I take such a view, another crucial aspect to
be considered is that C.L. Cleetus‘s case cited supra was
followed by the Division Bench of this Court in Y. Daniel‘s case.
It is settled law that the judicial propriety demands that the
learned Single Judge is bound to follow the decision of the
Division Bench. But it is to be seen that the Division Bench has
not considered the question as to whether the provisions of the
Act 1963 is applicable for a petition under Order IX Rule 7 CPC
but just followed the decision in C.L. Cleetus‘s case cited supra.
The Apex Court in Central Board of Dawoodi Bohra
Community and Another v. State of Maharashtra and
Another [(2005) 2 SCC 673] was considering the course
permissible in a case where a smaller Bench doubted the view
taken by the larger Bench. The Apex Court has held that the
smaller Bench cannot disagree or dissent from the view of law
taken by the larger Bench, and in case of any doubt smaller
OP(C) Nos. 519 of 2024 & 972 of 2024 25
Bench can invite the attention of the Chief Justice and request
for the matter be placed for hearing before a Bench larger than
the one whose decision is being doubted. The Apex Court in
Pradip Chandra Parija and Others v. Pramod Chandra
Patnaik and Others [2002 (1) SCC 1], was considering the
proper course for a two-Judge Bench of the Apex Court in the
case of disagreement with the decision of a three-Judge Bench
and held that keeping in view of the judicial discipline and
propriety, if a two-Judge Bench finds the judgment of a three-
Judge Bench to be so incorrect that it cannot be followed in any
circumstance the proper course would be to refer the matter
before another Bench of three Judges and only if the three
Judges also conclude that the judgment considered is incorrect
then the matter can be referred to five-Judge Bench. Going by
the judgment in Central Board of Dawoodi Bohra
Community‘s case cited supra, when a smaller Bench doubt the
view taken by a larger Bench it will be open for the smaller
Bench to place the matter before the Hon’ble Chief Justice.
Taking into consideration the above facts and
circumstances, I deem it appropriate to place the matter before
the Hon’ble the Chief Justice for orders, inviting the attention of
the Hon’ble the Chief Justice to the divergent views taken by
OP(C) Nos. 519 of 2024 & 972 of 2024 26
various Courts on the point and also taking into consideration
the impact and effect of an order under Order IX Rule 6A CPC as
explained by the Apex Court in Sangram Singh‘s case and
Arjun Singh‘s case referred above.
Sd/-
VIJU ABRAHAM
JUDGE
sbk/-
20-02-2025 /True Copy/ Assistant Registrar
