[Cites 3, Cited by 0]
Madras High Court
Maruthasamy vs Navamani on 21 January, 2026
C.R.P.(MD)No.406 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.406 of 2023
1.Maruthasamy
2.Subbammal ... Petitioners
-vs-
Navamani ... Respondent
PRAYER:- Petition filed under Article 227 of the Constitution of India, to set
aside the fair and deceetal order dated 16.06.2022 in I.A. No. 225 of 2021 in
O.S. No. 20 of 2012 on the file of the District Munsif Court, Keeranur and
allow this CRP.
For Petitioners : Ms. A.Banumathy
For Respondent : Mr. G.Sridharan
*****
ORDER
This Civil Revision Petition invoking Article 227 of the Constitution of
India, arises out of the order, dated 16.06.2022 in I.A.No.225 of 2021 in O.S.
No. 20 of 2012 on the file of the District Munsif Court, Keeranur (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.20 of 2012 before the Trial Court
for the sake of clarity and convenience.
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2.Heard Ms.A.Banumathy, learned Counsel appearing for the defendants
and Mr.G.Sridharan, learned Counsel appearing for the plaintiff and perused
the materials placed on record, apart from the pleadings of the parties.
3.The Plaintiff had filed a suit in O.S.No.20 of 2012 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 09.08.2018. Subsequently,
the defendants had filed an unnumbered application before the Trial Court to
set aside that ex parte 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.225 of 2021 to condone the delay of 553 days in filing it
under Section 5 of the Limitation Act, 1963, which has been dismissed by the
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
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an order refusing to set aside an ex parte 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 ex parte decree gets dismissed, it would logically
follow that the application to set aside the ex parte 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
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.
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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 ex
parte 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 ex parte 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 Article 227 of
the Constitution of India for it, though such practice has been prevalent all
along in this Court.
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.
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To
1.The District Munsif Court, Keeranur.
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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