[Cites 2, Cited by 0]
Madras High Court
A.Mary Jayarani vs Mercy (Died) on 21 January, 2026
C.R.P. (MD) No. 1216 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.01.2026
CORAM
THE HON'BLE MR. JUSTICE N.SENTHILKUMAR
C.R.P.(MD)No.1216 of 2023
Arockiadoss (Died)
1.A.Mary Jayarani
2.Mary Packia Vimala
3.A.George Sahaya Rubi
4.A.Packia Sahaya Sekar
5.A.James John Arther ... Petitioners
-vs-
Mercy (Died)
1.Sahaya George
2.Wilson George ... Respondents
PRAYER:- Petition filed under Section 115 of the Civil Procedure Code, to set
aside the fair and deceetal order dated 09.09.2022 in I.A. No. 382 of 2014 in
O.S.No.483 of 2004 on the file of the II Additional District Munsif,
Tiruchirappalli and allow this Civil Revision Petition.
For Petitioners : No appearance
For R1 : Mr.J.Sulthan Basha
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C.R.P. (MD) No. 1216 of 2023
ORDER
This Civil Revision Petition invoking Section 115 of the Civil Procedure
Code, arises out of the order dated 09.09.2022 in I.A.No.382 of 2014 in
O.S.No.483 of 2004 on the file of the II Additional District Munsif,
Tiruchirappalli (hereinafter referred to as the 'Trial Court' for short). The parties
are hereinafter referred to as per their description in the suit in O.S.No.483 of
2004 before the Trial Court for the sake of clarity and convenience.
2.Heard Mr.J.Sulthan Basha, Learned Counsel appearing for the first
plaintiff and perused the materials placed on record, apart from the pleadings of
the parties.
3.The plaintiffs have filed a suit in O.S.No.483 of 2004 before the Trial
Court, in which the defendants remained ex parte and the relief sought in the
suit had been granted by judgment and decree dated 24.03.2011. Subsequently,
the defendants have filed an unnumbered application before the Trial Court to
set aside that exparte decree under Rule 13 of Order IX of the Code of Civil
Procedure, 1908 (hereinafter referred to as 'the CPC' for short), along with an
application in I.A.No.382 of 2014 to condone the delay of 1076 days in filing it
under Section 5 of the Limitation Act, 1963, which has been dismissed by the
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impugned order and has been challenged by the defendants in this Civil
Revision Petition.
4.At this juncture, it must be highlighted that the Hon'ble Supreme Court
of India in Koushik Mutually Aided Co-operative Housing Society -vs-
Ameena Begum (Order dated 01.12.2023 in Civil Appeal @ Special Leave
Petition (C) No. 5489 of 2021) has laid down the dictum that only an appeal
under Rule 1(d) of Order XLIII of the CPC, would have to be preferred against
an order refusing to set aside an exparte decree in a suit, even when the
application to condone the delay in filing it has been dismissed. It is found
upon the premise that when the application to condone the delay in filing the
application to set aside the exparte decree gets dismissed, it would logically
follow that the application to set aside the exparte decree under Rule 13 of
Order IX of the CPC also stands automatically dismissed, whether or not, a
specific order is actually passed in that regard. It would be evident on a plain
reading of Section 5 of the Limitation Act, 1963, that it does not require filing
of a separate application to condone the delay in filing an application, though
there has been a long standing requirement in the Courts across the State of
Tamil Nadu insisting for it. In this context, it would be relevant to notice that
the Hon'ble Supreme Court of India in N.Balaji -vs- Virendra Singh [(2004) 8
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SCC 312] has held that when power to condone delay has been conferred by a
statute, such power could be exercised even without a separate application for
it, in the absence of a mandate to the contrary. Further, the Hon'ble Supreme
Court of India in A.Venkatasubbiah Naidu -vs- S.Chellapan [(2000) 7 SCC
695] has held that in an appeal under Rule 1 of Order XLIII of the CPC would
lie against the inaction of the Trial Court to dispose an application for
temporary injunction under Rule 3-A of Order XXXIX of the CPC within thirty
days treating it as a deemed order.
5.On an conspectus of the aforesaid principles, it must be held that when
an application to condone the delay in filing an application to set aside a
exparte decree is dismissed, it shall be treated as an order rejecting the
application under Rule 13 of Order IX of the CPC to set aside the exparte
decree that would be appealable under Rule 1(d) of Order XLIII of the CPC
before the concerned Appellate Court. In view of the aforesaid authoritative
pronouncement of the Hon'ble Supreme Court of India, which now holds the
field, the Defendants have to be relegated to file such appeal, and it would not
be possible for them to pursue a Civil Revision Petition under Section 115 of
the Civil Procedure Code for it, though such practice has been prevalent all
along in this Court.
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6.In the result, the Civil Revision Petition is disposed with the aforesaid
observation. No costs.
21.01.2026
Index : Yes/No
NCC : Yes/No
cmr
Note: Registry is directed to return the original
impugned order, if any under written acknowledgment
after retaining a copy of the same for record.
To
1.The II Additional District Munsif, Tiruchirappalli.
2.The Section Officer,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
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N.SENTHILKUMAR, J.
cmr
21.01.2026
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