Telangana High Court

Baltha Lingaiah vs Boda Ramchandra Reddy on 9 June, 2025

Author: K. Lakshman

Bench: K. Lakshman

                                   1




    IN THE HIGH COURT FOR THE STATE OF TELANGANA
                    AT HYDERABAD

            HON'BLE SRI JUSTICE K. LAKSHMAN

       CIVIL REVISION PETITION No.1126 OF 2025

Between:
Baltha Lingaiah                                         .. Petitioners
                                 Vs.
Boda Ramachandra Reddy                             .. Respondent No.1

DATE OF COMMON ORDER PASSED:                   09.06.2025


SUBMITTED FOR APPROVAL.

THE HON'BLE SRI JUSTICE K.LAKSHMAN
1      Whether Reporters of Local newspapers
       may be allowed to see the Judgment?           Yes/No

2      Whether the copies of judgment may be
       marked to Law Reporters/Journals              Yes/No

3      Whether His Lordship wish to see the fair
       copy of the Judgment?                         Yes/No



                                            _____________________
                                           JUSTICE K.LAKSHMAN
                                    2




IN THE HIGH COURT FOR THE STATE OF TELANGANA
                AT: HYDERABAD
                     CORAM:
       * HON'BLE SRI JUSTICE K. LAKSHMAN

       + CIVIL REVISION PETITION No.1126 OF 2025

% Delivered on: 09.06.2025
Between:
# Baltha Lingaiah                                     .. Petitioners
                                  Vs.
$ Boda Ramachandra Reddy                        .. Respondent No.1

! For Petitioners                 : Mr. P. Venugopal, ld.Sr.Counsel
                                    rep.Mr. P. Sathwik Reddy, ld.
                                    counsel.

For Respondent No.1               : Mr. Ghanshyamdas Mandhani,
                                    Ld. Counsel rep. Mr.Aditya
                                    Mandhani, ld. counsel appearing
                                    for respondent No.1

Gist                              :
> Head Note                       :
? Cases Referred                  :
1.     2023 SCC OnLine SC 1662
2
       1987 SCC OnLine Ker 1999
3
       2004 SCC OnLine SC 1409 = (2005) 1 SCC 436
4
       MANU/TL/0531/2023
                                  3




            HON'BLE SRI JUSTICE K. LAKSHMAN

         CIVIL REVISION PETITION No.1126 OF 2025
ORDER:

Heard Sri P. Venugopal, learned Senior Counsel representing

Mr. P. Sathwik Reddy, learned counsel for the petitioners and

Mr. Ghanshyamdas Mandhani, learned counsel representing

Mr.Aditya Mandhani, learned counsel appearing for respondent

No.1. With the consent of both the learned counsel, this CRP is

disposed of at the admission stage.

2. This Civil Revision Petition is filed under Article 227 of

the Constitution of India, challenging the order dated 29.01.2025

passed in I.A. No. 433 of 2023 in O.S. No. 21 of 2018 by the

learned Senior Civil Judge - cum - Assistant Sessions Judge, at

Peddapalli. Vide aforesaid order, learned trial Court dismissed the

application filed by the petitioners filed under Section 5 of the

Limitation Act, 1963, to condone the delay of 186 days in filing an

application under Order 9 Rule 13 of CPC to set aside the exparte

judgment and decree dated 27.12.2022.

Facts of the Case:-

3. 1st respondent/plaintiff had filed a suit in O.S.No.21 of

2018 against the petitioners and respondents 2 to 6 herein for

partition, recovery of possession and also to declare registered

documents as null and void. The said suit was decreed on

27.12.2022. It is an exparte decree. Therefore, the petitioners

herein/defendants 6 to 9 filed an application under Section 5 of the

Limitation Act, to condone the delay of 186 days from 28.01.2023

to 31.07.2023 in filing an application under Order 9 Rule 13 of

CPC to set aside the said judgment and decree passed in O.S.No.21

of 2018.

4. 1st respondent/plaintiff had filed counter opposing the said

application contending that it is the duty of the party to be vigilant

in knowing the proceedings of the Court and contesting the matter.

But the petitioners herein kept silent all these years under the guise

of ill-health which clearly shows gross negligence on their part.

Though there is service of notice on the 2nd petitioner

herein/Defendant No.7 through1st petitioner herein/defendant No.6

and having knowledge of the proceedings, he did not approach the

Court. Though the petitioners 3 and 4 herein/Defendant Nos.8 and

9 are having knowledge about service of summons through

publication in Nava Telangana Daily Newspaper, Peddapally

District Edition, they did not appear before the Court. The

petitioner No.4 herein/9th defendant is residing in Hyderabad more

than ten years and having knowledge of the publication of

summons in the aforesaid daily newspaper.The summons sent to

the defendant No.7 to 9 on the addresses mentioned in the gift

deed, which was executed by the defendant No.6 in favour of the

defendant No.7 to 9. Since all the petitioners herein did not appear

before the Court, the trial Court vide order dated 27.12.2022 passed

an ex parte judgment and decree. The medical prescriptions and

reports filed by the petitioner No.1/Defendant No.6 are false and

created. Despite granting sufficient time by the trial Court, the

petitioners herein failed to appear before the Court to contest the

suit. Therefore, he sought to dismiss the petition.

5. Vide order dated 27.12.2022, learned trial Court dismissed

the application holding that the summons sent to the defendant

No.7 to 9 on the addresses mentioned in the gift deed, which was

executed by the defendant No.6 in favour of the petitioners

herein/defendant Nos.7 to 9. The case record clearly reveals that in

order to protract the suit, the petitioners herein/defendants 6 to 9

intentionally not filed written statement and become exparte.They

have not explained the delay properly etc.

6. Challenging the said order, the petitioners filed the present

revision.

7. Sri P.Venugopal, learned Senior counsel appearing for

petitioners would contend that the suit is for partition and separate

possession and also to declare the registered documents as null and

void.

8. The said suit was decreed ex parte. Therefore, the

petitioners filed the aforesaid I.A.No.434 of 2024 to condone the

delay of 186 days in filing an application under Order 9 Rule 13 of

CPC to set aside the exparte judgment and decree by explaining the

reasons specifically. The same were not considered by the learned

trial Court. Paper publication was ordered in Nava Telangana news

daily which is not having circulation. Therefore, the same is in

violation of Order 5 Rule 20 of CPC. Without considering the said

aspects, learned trial Court dismissed the said application vide

impugned order dated 29.01.2025.

9. Whereas, Sri Ghanshyamdas Mandhani, learned counsel

appearing for respondent No.1 would contend that the present

revision filed by the petitioners is not maintainable. The petitioners

have to prefer an appeal under Order 43 of CPC challenging the

impugned order. He has also placed reliance on the principle laid

down by the Apex Court in Koushik Mutually Aided

Cooperative Housing Society vs. Ameena Begum 1.

10. In the light of the said submission, this Court has to

decide with regard to the maintainability of the present revision at

the first place.

11. As discussed supra, the aforesaid suit is for partition and

separate possession and to declare the registered sale deeds as null

and void. The petitioners herein and respondents 2 to 6 were set

exparte. Learned trial Court decreed the said suit exparte.

Thereafter, the petitioners herein/defendants 6 to 9 filed I.A.No.433

of 2023 in O.S.No.21 of 2018 under Section 5 of the Limitation

2023 SCC OnLine SC 1662

Act, 1963 to condone the delay of 186 days in filing an application

to set aside the ex parte judgment and decree under Order 9 Rule

13 of CPC.

12. When the said suit is decreed ex parte, the defendants

will have the following options:-

1. Filing of an application under Order 9 Rule 13 of CPC to set aside the exparte judgment and decree,

2. Prefer an appeal under Section 96 of CPC

In the present case, the petitioners/defendants 6 to 9 filed an

application under Order 9 Rule 13 of CPC to set aside the ex parte

judgment and decree. Since there is delay, they have also filed an

application under Section 5 of the Limitation Act to condone the

delay of 186 days in filing the said application. The same was

dismissed. Challenging the said order, the petitioners filed the

present revision.

13. During the course of hearing, it is brought to the notice

of this Court that in view of the dismissal of the petition filed under

Section 5 of the Limitation Act to condone the delay, learned trial

Court also rejected an application filed under Order 9 Rule 13

CPC.

14. In Thambi vs. Mathew2, the Full Bench of Kerala High

Court, referring to the relevant decisions on the above question,

held that an appeal presented out of time is nevertheless, an appeal

in the eye of law for all practical purposes and order dismissing the

appeal was a decree that could be subject of second appeal. It was

also held that Rule 3 (A) of Order 41 introduced by the

Amendment Act, 1976 to the Code, does not in any way affect the

principle. An appeal registered under Rule 9 of Order 41 CPC is to

be disposed of according to law and a dismissal of the appeal for

the reason of delay in its presentation after the dismissal of an

application for condonation of delay is in substance and effect a

confirmation of the decree appealed against. Thus, the position that

emerges on the survey of authorities is that an appeal filed along

with the application for condonation of delay in filing that appeal

when dismissed and the refusal to condone delay is nevertheless of

decision in appeal.

1987 SCC OnLine Ker 1999

15. The Three Judge Bench of Apex Court in Shyam Sundar

Sharma vs. Pannalal Jaiswal & Ors 3 held as follows:-

13. .... legislative intent incorporated in the explanation to Order IX Rule 13 of the Code was to confine the defendant to a single course of action and to discourage the prolonging of the litigation on the ex parte decree, namely, by preferring an application to the trial court under Order IX Rule 13 of the Code for setting aside the decree and by filing an appeal to a superior court against it. If he did not withdraw the appeal filed by him or allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Order IX Rule 13 of the Code. The Court also clarified that by the introduction of the explanation, the area of operation of the doctrine of merger was enormously extended. By virtue of the explanation, the disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation. In the light of this, it was held that though in that case the appeal filed by the husband against the ex parte decree was dismissed on the ground of it being barred by limitation, it was a disposal of the appeal and the petition under Order IX Rule 13 of the Code was hit by the explanation. In P. Kiran Kumar vs. A.S. Khadar and others [(2002) 5 SCC 161] this Court followed the decision in Rani Choudhury (supra) and held that the dismissal of the appeal against an ex parte decree as barred by limitation, prevented the trial court which passed the ex parte decree, from exercising its power under Order IX Rule 13 of the Code in view of the explanation.

16. Referring to the aforesaid Full Bench judgment, Kerala

High Court and other High Courts held that dismissal of an appeal

which is dismissed for default or as barred by limitation because of

the dismissal of the application for condoning the delay in filing

the same, should be treated on a par with the non-filing of an

2004 SCC OnLine SC 1409 = (2005) 1 SCC 436

appeal or the withdrawal of an appeal, cannot be accepted. Merely

because, there is no merger of the decree of the trial Court in that

of the appellate Court does not imply that the said explanation

would not be applicable.

17. In a decision of this Court in Pingle Naresh Reddy vs.

Pingle Sita Reddy & Ors 4, the plaintiff filed a suit for partition and

separate possession and the same was decreed ex parte. Thereafter,

the defendant No.2 had filed two Interlocutory Applications i.e.

application under Section 5 of the Limitation Act, 1963, to

condone the delay in filing an application under Order 9 Rule 13 of

CPC to set aside the ex parte preliminary decree. Both the

applications were dismissed vide common order. Challenging the

same, the defendant No.2 herein filed two revisions. In the said

revisions, the plaintiff took an objection with regard to

maintainability of the revisions, this Court held that rejection of an

application under Order 9 Rule 13 of CPC is an appealable order

under Order 43 Rule 1(B) of the CPC, the impugned common

order therein in its entirety is appealable. Such an order cannot be

MANU/TL/0531/2023

served with two independently decided applications filed under

Section 5 of the Limitation Act, 1963 as it would result in

delivering a judgment in appeal. Thus, this Court held that

revisions are not maintainable.

18. In Koushik Mutually Aided Cooperative Housing

Society (supra), paragraph Nos. 13 to 20 are relevant and the same

are extracted below:-

13. As against the ex-parte decree, a defendant has three remedies available to him. First, is by way of filing an application under Order IX Rule 13 CPC seeking for setting aside ex-parte decree; the second, is by way of fi ling an appeal against the ex-parte decree under Section 96(2) of the CPC and the third, is by way of review before the same court against the ex-parte decree.

14. The filing of an application under Order IX Rule 13 CPC as well as the fi ling of appeal under Section 96(2) of the CPC against the ex-parte decree are concurrent remedies available to a defendant. However, once the appeal preferred by the defendant against the ex-parte decree is dismissed, except when it is withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued. Conversely, if an application fi led under Order IX Rule 13 CPC is rejected, an appeal as against the ex-

parte decree can be preferred and continued under Section 96(2) of the CPC. Thus, an appeal against an ex-parte decree even after the dismissal of an application under Order IX Rule 13 CPC is maintainable.

15. In Bhanu Kumar Jain vs. Archana Kumar, AIR 2005 SC 626 :

(2005) 1 SCC 787, speaking through Sinha, J. observed in paragraph 26 as under: "When an ex parte decree is passed, the defendant (apart from fi ling a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to fi le an appeal and another to fi le an application for setting aside the order in terms of Order IX Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation

appended to Order IX Rule 13 of the Code a petition under Order IX Rule 13 would not be maintainable. However, the Explanation I appended to the said provision does not suggest that the converse is also true."

16. Against the order passed under Order IX Rule 13 CPC rejecting an application for seeking setting aside the decree passed ex-parte, an appeal is provided. When an application is fi led seeking condonation of delay for seeking setting aside an ex-parte decree and the same is dismissed and consequently, the petition is also dismissed, the appeal under Order XLIII Rule 1(d) CPC is maintainable. Thus, an appeal only against the refusal to set aside the ex-parte decree is maintainable whereas if an order allowing such an application is passed, the same is not appealable.

17. Thus, when an application or petition fi led under Order IX Rule 13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC. Thus, Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed. Thus, when an alternative and effective appellate remedy is available to a defendant, against an ex-parte decree, it would not be appropriate for the defendant to resort to fi ling of revision under Section 115 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) CPC being available, revision under Section 115 of the CPC fi led in the instant case was not maintainable.

18. When there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passing the same,a Revision Petition cannot be fi led. It is needless to observe that in the absence of an appellate remedy, a revision may be maintainable.

19. It is clarified that once the Trial Court dismissed the application seeking condonation of delay in fi ling petition under Order IX Rule 13 CPC, and consequently, the main petition under Order IX Rule 13 CPC also stood dismissed which is also noted by the trial Court as "In the result, the petition is dismissed".

20. Realising this aspect regarding the maintainability of a revision petition before the High Court, Sri SajanPoovayya, learned senior counsel submitted that liberty may be reserved to the first respondent herein to fi le an appeal and if such an appeal is filed within a time frame to be granted by this Court, the issue of limitation in filing the appeal under Order XLIII Rule 1(d) CPC may not be raised by the High Court.

19. In the light of the principle laid down in the aforesaid

judgments, coming to the facts of the present case on hand, as

discussed supra, in the present case also, the petitioners/defendants

6 to 9 were set ex parte and suit was decreed ex parte. Therefore,

they have filed an application under Section 5 of the Limitation

Act, to condone the delay of 186 days in filing an application under

Order 9 Rule 13 of CPC to set aside the ex parte judgment and

decree. The same was dismissed. Challenging the said order, the

petitioners filed the present revision.

20. As discussed supra, during the course of hearing, it is

brought to the notice of this Court that in view of the dismissal of

the application filed under Section 5 of the Limitation act, the trial