Gauhati High Court
Moushumi Dutta Chouwdhury @ Moushumi … vs Sushanta Bhowmik And 3 Ors on 6 August, 2025
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GAHC010067782023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/91/2023
MOUSHUMI DUTTA CHOUWDHURY @ MOUSHUMI DUTTA
W/O- SRI BIKRAMJIT DUTTA, D/O- LATE ASHIM KUMAR DUTTA ROY, R/O-
N.N. DUTTA ROAD, PREMTOLA, SILCHAR, P.O. AND P.S. SILCHAR, DIST.
CACHAR, ASSAM
VERSUS
SUSHANTA BHOWMIK AND 3 ORS.
S/O- LATE SATYENDRA KUMAR BHOWMIK, R/O- DAS COLONY, P.O. AND
P.S. SILCHAR, DIST. CACHAR, ASSAM, PIN- 788001.
2:SANTOSH DAS
S/O- LATE MOHENDRA DAS
R/O- NATIONAL HIGHWAY
SILCHAR TOWN
P.O. AND P.S. SILCHAR
DIST. CACHAR
ASSAM
PIN- 788001.
3:PANNA DAS
S/O- SRI AKHIL CHANDRA DAS
R/O- LINK ROAD
1ST SILCHAR TOWN
P.O. AND P.S. SILCHAR
DIST. CACHAR
ASSAM
PIN- 788001.
4:SUBODH DAS
S/O- SRI BEBUL DAS
R/O- SHISHU MANDIR ROAD
P.O. AND P.S. SILCHAR
DIST. CACHAR
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ASSAM
PIN- 788001
Advocate for the Petitioner : MS. R CHOUDHURY,
Advocate for the Respondent : MR. D CHAKRABARTY (R-1 TO 4), MS D.CHAKRABARTY (R-1
TO 4)
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
06.08.2025
Heard Ms. R. Choudhury, learned counsel for the petitioner and Mr. D.
Chakrabarty, learned counsel for the respondents.
2. In this petition, under Article 227 of the Constitution of India read with
Section 151 of the CPC, the petitioner has put to challenge the correctness or
otherwise of the following orders :-
(i) Order dated 16.02.2023, passed in Misc. (J) Case No. 130/2020,
arising out of Title Suit No. 44/2018, by which the learned Civil
Judge No. 1, Cachar at Silchar (trial court hereinafter) had
rejected the Petition No. 204/12, filed under Order 9 Rule 7 read
with Section 151 of the CPC praying for vacating the ex-parte
order dated 08.11.2018, and to accept the written statement;
and
(ii) Order dated 16.02.2023, passed in Misc. (J) Case No. 99/2020,
arising out of Title Suit No. 44/2018, by which the learned trial
court had rejected the Petition No. 14/04, filed under Order 9
Rule 13 read with Section 151 of the CPC.
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3. Ms. Choudhury, learned counsel for the petitioner submits that the
respondent Nos. 1 & 2 herein, as plaintiffs, filed one Title Suit No. 44/2018,
before the learned trial court, against the petitioner herein and respondent Nos.
3 & 4, for special performance of contract. But, the said suit proceeded ex-parte
against the petitioner. Thereafter, the petitioner filed an application for vacating
the ex-parte order and to accept the written statement, wherein a stand has
been taken that the respondents made fraud in executing the deed of
agreement of sale. But, the learned trial court had rejected the said prayer of
the petitioner and denied to accept the written statement. Thereafter, the
petitioner had filed two applications, one under Order 9 Rule 7 read with Section
151 of the CPC, which was registered as Misc. (J) Case No. 130/2020 and
another, under Order 9 Rule 13 read with Section 151 of the CPC, which was
registered as Misc. (J) Case No. 99/2020. But, the learned trial court had
rejected both the petitions and being aggrieved, the petitioner herein has
preferred this petition, under Article 227 of the Constitution of India.
4. Per-contra, Mr. Chakrabarty, learned counsel for the respondents has
opposed the petition taking a stand that the impugned orders suffer from no
infirmity or illegality requiring any interference of this court.
5. Having heard the submissions of learned counsel for both the parties, I
have carefully gone through the petition as well as the documents placed on
record and also perused the impugned orders, so passed by the learned trial
court.
6. It appears that the Misc. (J) Case No. 130/2020 was filed under Order 9
Rule 7 read with Section 151 of the CPC and Misc. (J) Case No. 99/2020 was
filed under Order 9 Rule 13 read with Section 151 of the CPC.
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7. Indisputably, this present revision petition is filed under Article 227 of the
Constitution of India. But, against an order, passed under Order 9 Rule 7 of the
CPC, an appeal will lie, as held by Rajasthan High Court, in the case of
Mangalsingh vs. Sagarmal and Others, reported in 1956 SCC OnLine Raj
118. While dealing with similar issue, in the said case, then Chief Justice
Wancho, as he was then, relying upon a decision in the case of Swarup
Narain vs. Gopi Nath, reported in ILR (1953) 3 Raj 483, had held that
where an application under Order IX, Rule 7 of the CPC has been dismissed, it is
open to the defendant to take a ground under Section 105 of the CPC in the
appeal which would finally come to the High Court from the decree passed in
the suit, and therefore, a revision from an order of dismissing an application
under Order IX, Rule 7 of the CPC does not lie in view of the decision in Swarup
Narain‘s case.
8. Again, in the case of Koushik Mutually Aided Cooperative Housing
Society vs. Ameena Begum and Another, in Civil Appeal No ………/2023,
arising out of Special Leave Petition (Civil) No. 5489/2021, Hon’ble Supreme
Court in paragraph No. 16 held that against the order passed under Order IX
Rule 13 of the CPC rejecting an application for seeking setting aside the decree
passed ex-parte, an appeal is provided. It further held that when an application
or petition filed under Order IX Rule 13 of the CPC is dismissed, the defendant
can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 of the
CPC. It also held that a civil revision petition, under Section 115 of the CPC,
would not arise when an application/petition under Order IX Rule 13 of the CPC
is dismissed. It has also held that when an alternative and effective appellate
remedy is available to the defendant, against an ex-parte decree, it would not
be appropriate for the defendant to resort to filing of revision under Section 115
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of the CPC challenging the order refusing to set aside the order of setting the
defendant ex-parte. In view of the appellate remedy under Order XLIII Rule
1(d) of the CPC being available, revision under Section 115 of the CPC filed in
the instant case was not maintainable.
9. In view of the discussion made herein above and also examining the
factual matrix of the present case and also taking note of the submissions of
learned counsel for both the parties, this court is of the view that this present
revision petition, under Article 227 of the Constitution of India is not
maintainable, in view of the remedy available under Order XLIII Rule 1(d) of the
CPC.
10. Accordingly, this civil revision petition stands dismissed. However, liberty
will remain with the petitioner to avail appropriate remedy by filing appropriate
petition.
` JUDGE Comparing Assistant