[Cites 2, Cited by 0]
Madras High Court
S.Ramachandran vs K.Saraswathi on 21 January, 2026
C.R.P. (MD) No. 1000 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.1000 of 2023
and
C.M.P.(MD)No.4948 of 2023
S.Ramachandran ... Petitioner
-vs-
K.Saraswathi ... Respondent
PRAYER:- Petition filed under Section 115 of the Civil Procedure Code, to set
aside the order dated 20.01.2023 in I.A. No. 259 of 2020 in O.S. No. 210 of
2014 on the file of the Subordinate Court, Uthamapalayam.
For Petitioner : No appearance
For Respondent : No appearance
*****
ORDER
This Civil Revision Petition invoking Section 115 of the Civil Procedure
Code, arises out of the order dated 20.01.2023 in I.A. No. 259 of 2020 in O.S.
No. 210 of 2014 on the file of the Subordinate Court, Uthamapalayam
(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. 210 of 2014 before the
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Trial Court for the sake of clarity and convenience.
2.Perused the materials placed on record, apart from the pleadings of the
parties.
3.The Plaintiff had filed a suit in O.S. No. 210 of 2014 before the Trial
Court, in which the Defendant remained ex parte, and the relief sought in the
suit had been granted by judgment and decree dated 18.11.2015. Subsequently,
the defendant 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.259 of 2020 to condone the delay of 1652 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 defendant 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
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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
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
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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 Defendant has to be relegated to file such appeal, and it would not be
possible for him 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.
6.In the result, the Civil Revision Petition is disposed with the aforesaid
observation. No costs. Consequently, connected miscellaneous petition is
closed.
21.01.2026
Index : Yes/No
NCC : Yes/No
cmr
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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 Subordinate Court, Uthamapalayam.
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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