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Judgment
Sabyasachi Bhattacharyya, J.:-
CAN 1 of 2025 is an application for condonation of a delay of more than 13 years (about 4938 days) in filing the present appeal.
The original ex parte decree, against which the present appeal has been preferred, was passed on December 05, 2011. The present appellant took out on September 04, 2015 an application under Order IX Rule 13 of the Code of Civil Procedure for recalling such ex parte decree, coupled with an application under Section 5 of the Limitation Act for condonation of the delay in filing the Order IX Rule 13 application.
The said condonation application was dismissed on March 01, 2024, consequentially dismissing the parent application under Order IX Rule 13 of the Code of Civil Procedure as well. FMA 722 of 2024, the appeal preferred against such dismissal, was itself dismissed on March 05, 2025. A Special Leave Petition (SLP) was preferred against the same which was also dismissed, affirming the order dismissing the condonation application in connection with the application under Order IX Rule 13. Not stopping there, the appellant took out an application for review of the order dismissing the SLP, which was also dismissed by the Hon’ble Supreme Court.
Thereafter, the present appeal has been filed after a long delay, seeking shelter under the pendency of the previous proceeding arising out of the application under Order IX Rule 13 of the Code.
Learned senior counsel appearing for the appellant argues that the grounds taken for the condonation of delay in the application for condonation filed in connection with the Order IX Rule 13 application are different from the present condonation application. Thus, it is submitted that it cannot be said that the appellant is barred by the principle of res judicata from raising the present grounds.
Learned senior counsel further submits that the condonation application filed earlier was in respect of an application under Order IX Rule 13, which is different in character from a condonation application filed in connection with an appeal, which is the present case. Thus, the dismissal of one cannot operate as res judicata in respect of the other.
It is next contended by the appellant that the time consumed due to pendency of an earlier application under Order IX Rule 13 of the Code of Civil Procedure was considered by the Hon’ble Supreme Court in the matter of N. Mohan vs. R. Madhu, reported at (2020) 20 SCC 302, as sufficient explanation for the delay in preferring a subsequent appeal.
By placing reliance on the relevant paragraphs of the said judgment, learned senior counsel submits that as such, the present application for condonation ought to be allowed in view of the earlier pendency of the proceedings in connection with the Order IX Rule 13 application.
Learned senior counsel appearing for the plaintiffs/respondents squarely controverts such contentions and advances arguments in that regard.
Upon a perusal of N. Mohan vs. R. Madhu, we find that it cannot be said that any proposition of law, set in stone, within the contemplation of Article 141 of the Constitution of India was laid down by the Hon’ble Supreme Court therein with regard to the period consumed in pursuing an application under Order IX Rule 13 of the Code of Civil Procedure being invariably a good ground for condonation of the delay in filing a subsequent appeal against the self-same ex parte decree. It would be fruitful to examine the relevant paragraphs of the said judgment, which are set forth below:
“14: Considering the scope of Order IX Rule 13 CPC and the statutory right to appeal under Section 96(2) CPC, after referring to Bhanu Kumar Jain, in Bhivchandra Shankar More, this Court held as under:-
“11.It is to be pointed out that the scope of Order 9 Rule 13 CPC and Section 96(2) CPC are entirely different. In an application filed under Order 9 Rule 13 CPC, the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any “sufficient cause” from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was prevented for “sufficient cause”, the court may set aside the ex parte decree and restore the suit to its original position. In terms of Section 96(2) CPC, the appeal lies from an original decree passed ex parte. In the regular appeal filed under Section 96(2) CPC, the appellate court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order 9 Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order 9 Rule 13 CPC is dismissed.”
12.The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed. In Bhanu Kumar Jain v. Archana Kumar, the Supreme Court considered the question whether the first appeal was maintainable despite the fact that an application under Order IX Rule 13 CPC was filed and dismissed. Observing that the right of appeal is a statutory right and that the litigant cannot be deprived of such right, in para 36, it was held as under:-
36.… A right to question the correctness of the decree in a first appeal is a statutory right. Such a right shall not be curtailed nor shall any embargo be fixed thereupon unless the statute expressly or by necessary implication says so. (See Deepal Girishbhai Soni v. United India Insurance Co. Ltd. and Chandravathi P.K. v. C.K. Saji …………..”
15: The defendant against whom an ex parte decree is passed, has two options. First option is to file an application under Order IX Rule 13 CPC and second option is to file an appeal under Section 96(2) CPC. The question to be considered is whether the two options are to be exercised simultaneously or can also be exercised consecutively. An unscrupulous litigant may, of course, firstly file an application under Order IX Rule 13 CPC and carry the matter up to the highest forum; thereafter may opt to file appeal under Section 96(2) CPC challenging the ex parte decree. In that event, considerable time would be lost for the plaintiff. The question falling for consideration is that whether the remedies provided as simultaneous can be converted into consecutive remedies.
16.An appeal under Section 96(2) CPC is a statutory right, the defendant cannot be deprived of the statutory right merely on the ground that earlier, the application filed under Order IX Rule 13 CPC was dismissed. Whether the defendant has adopted dilatory tactics or where there is a lack of bona fide in pursuing the remedy of appeal under Section 96(2) of the Code, has to be considered depending upon the facts and circumstances of each case. In case the court is satisfied that the defendant has adopted dilatory tactics or where there is lack of bona fides, the court may decline to condone the delay in filing the first appeal under Section 96(2) CPC. But where the defendant has been pursuing the remedy bona fide under Order IX Rule 13 CPC, if the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 CPC, the defendant would be deprived of the statutory right of appeal. Whether the defendant has adopted dilatory tactics or where there is lack of bona fide in pursuing the remedy of appeal under Section 96(2) of the code after the dismissal of the application under Order IX Rule 13 CPC, is a question of fact and the same has to be considered depending upon the facts and circumstances of each case.
17.When the defendant filed appeal under Section 96(2) CPC against an ex-parte decree and if the said appeal has been dismissed, thereafter, the defendant cannot file an application under Order IX Rule 13 CPC. This is because after the appeal filed under Section 96(2) of the Code has been dismissed, the original decree passed in the suit merges with the decree of the appellate court. Hence, after dismissal of the appeal filed under Section 96(2) CPC, the appellant cannot fall back upon the remedy under Order IX Rule 13 CPC.
… … … …
19.Thereafter, the appellant has preferred the first appeal with the application to condone the delay of 546 days in filing the first appeal. As pointed out earlier, there was a delay of 276 days in filing the application to set aside the ex-parte decree. Pursuing the proceedings in the application filed under Order IX Rule 13 CPC has caused further delay of 270 days. Thus, there has been a total delay of about 546 days in filing the first appeal. In the application for condonation of delay, of course, the appellant has raised the very same ground which was taken in the application filed under Section 5 of the Limitation Act to set aside the ex-parte decree which was not accepted in the earlier proceedings.
20.The learned counsel for the appellant-defendant has submitted that a huge amount of Rs.45,00,000/- is said to have been paid by cash which according to the learned counsel raises serious doubts about the genuineness of such transaction. Per contra, the learned Senior counsel for the respondent-plaintiff has submitted that lending of Rs.45,00,000/- as hand loan is substantiated by issuance of two post-dated cheques in favour of the respondent by the appellant – one for the sum of Rs.25,00,000/- and another for the sum of Rs.20,00,000/-. We are not inclined to go into the merits of the contention of the parties. All that is to be pointed out is that the appellant would have been well advised that if he had filed the first appeal simultaneously along with the application under Order IX Rule 13 CPC. The appellant has however shown his bona fide by depositing Rs.25,00,000/- in compliance with the orders of this Court dated 13.08.2018. The said amount of Rs.25,00,000/- was permitted to be withdrawn by the respondent-plaintiff. Considering the facts and circumstances of the case and in the interest of justice, in our view, the appellant deserves an opportunity to put forth his defence in the suit for recovery of money. But to avail this opportunity, he must deposit the balance amount of Rs.20,00,000/- as a condition precedent for condonation of delay. In these terms, the impugned judgment is accordingly liable to be set aside.”
It is evident that the consideration before the Hon’ble Supreme Court in the said case was primarily whether an appeal can be filed against the self-same ex parte decree post-dismissal of an application under Order IX Rule 13 of the Code for setting aside such decree. In such context, the Hon’ble Supreme Court observed that although an application under Order IX Rule 13 of the Code is barred in the event an appeal preferred against the self-same ex parte decree is dismissed first, there is no such converse proposition applicable to an appeal, if filed after the Order IX Rule 13 application.
We respectfully agree with such proposition and there cannot be any quarrel with the same. The law is well-settled that once an appeal preferred against an ex parte decree is dismissed, on whatever ground, subsequently no application under Order IX Rule 13 lies against the self-same ex parte decree. However, there is no converse proposition recognized by law, to the effect that if an Order IX Rule 13 application is dismissed first, no appeal lies against the self-same ex parte decree.
However, it is not the said question which has fallen for consideration before us but as to whether an explanation for the delay for a particular period, albeit given in connection with an Order IX Rule 13 application, if turned down up to the Apex Court of the country, operates as res judicata in a subsequent application for condonation of delayfor the self-same overlapping period, even if it is in connection with an appeal and not a second application under Order IX Rule 13.
In N. Mohan (supra), the Hon’ble Supreme Court observed that the defendant, against whom an ex parte decree is passed, has two options, the first being to file an application under Order IX Rule 13 and the second, an appeal under Section 96(2) of the Code. The question which was being considered, as mentioned in paragraph no.15 of the report, was whether the two options are to be exercised simultaneously or can also be exercised consecutively. The Hon’ble Supreme Court further posed the question as to whether the remedies provided as simultaneously can be converted into consecutive remedies. In such context, the Hon’ble Supreme Court upheld the proposition that even after the dismissal of Order IX Rule 13 application, an appeal is maintainable, although the reverse is not true.
However, in the same breath, the Hon’ble Supreme Court observed that an unscrupulous litigant may, of course, firstly file an application under Order IX Rule 13 of the Code and carry the matter up to the highest forum; thereafter may opt to file appeal under Section 96(2) of the Code challenging the ex-parte decree. In that event, it was held, considerable time would be lost for the plaintiff.
It was further observed in paragraph no.16 of the report that whether the defendant has adopted dilatory tactics or whether there is a lack of bona fides in pursuing the remedy of appeal under Section 96(2) of the Code, has to be considered depending upon the facts and circumstances of each case. In each case, if the court is satisfied that the defendant has adopted dilatory tactics or where there is lack of bona fides, the court may decline to condone the delay in filing the first appeal under Section 96(2) of the Code. It was only where the defendant was pursuing the remedy under Order IX Rule 13 of the Code bona fide, if the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 of the Code, it was held that the defendant would be deprived of the statutory right of appeal.
Furthermore, the Hon’ble Supreme Court, in paragraph no.20 of the judgment, categorically observed that the appellant therein would have been well advised if he had filed the first appeal simultaneously along with the application under Order IX Rule 13 of the Code.
Thereafter, the Hon’ble Supreme Court, without laying down any proposition of law under Article 141 of the Constitution on such proposition, went on to enter into the facts of the case and recorded that the appellant therein had shown his bona fide by depositing Rs. 25 lakh in compliance with the orders of the Hon’ble Supreme Court, which amount was also permitted to be withdrawn by the respondent-plaintiff. Considering such facts and circumstances of the case and “in the interest of justice”, in the view of the Hon’ble Supreme Court, the appellant therein deserved an opportunity to put forth his defence in the suit for recovery of money. The Hon’ble Supreme Court also observed that to avail such opportunity, he must deposit the balance amount of Rs.20 lakh as a condition precedent for condonation of delay.
Thus, in the unique facts and circumstances of that case, the Hon’ble Supreme Court had granted such relief, in the same breath holding that it was being granted “in the interest of justice”, thereby bringing in an element of Article 142 of the Constitution of India, orders passed under which provision do not operate as ratio decidendi of the judgment, which are binding precedents under Indian Law.
In the present case, the question posited before us is different. We agree with the proposition put forward by the appellant that a first appeal could have been filed even after the dismissal of an application under Order IX Rule 13 against the self-same ex parte decree. However, the question before us is whether the delay occasioned in filing the Order IX Rule 13 application, of about three and half years, which was disbelieved and refused to be condoned by first the trial court, then the Division Bench of this Court, and subsequently the Apex Court of the country, can be reopened in a subsequent condonation application, albeit in connection with a first appeal, even after the said refusal attained finality.
The resounding answer to the said question is in the negative.
In the present case, it is immaterial whether the earlier condonation application was filed in connection with an Order IX Rule 13 application or whether the second application has been filed in connection with an appeal, since there is no difference in the texture of the component of condonation of the delay between the two, which is common to both the said overlapping periods.
Condonation, if refused, whether in respect of a miscellaneous case or an appeal, is equally binding on the parties.
Thus, the foundational premise of the present application for condonation, which is the period between December 05, 2011 (when the ex parte decree was passed) and September 04, 2015 (when the application under Order IX Rule 13 was filed), is common with the earlier round of litigation.
The delay for such period, having been refused to be condoned up to the Hon’ble Supreme Court, cannot be reargued, the appellant being barred by the principles of constructive res judicata (even if a different ground is now taken), otherwise by res judicata as well as the doctrine of issue estoppel.
Since the said initial period of the delay cannot be condoned by us by reopening the issue afresh after being affirmed up to the Hon’ble Supreme Court in the negative, there is no question of condoning the delay for the subsequent period, which is only a necessary corollary of the initial period.
Even otherwise, we find from the materials before us and even from the pleadings of the appellant that the appellant has been a habitual defaulter, initially being more than three and half years late in filing the Order IX Rule 13 application and thereafter in wasting an unnecessary period of thirteen and half years (about 4938 days) for preferring this appeal without any plausible justification being given therefor.
As reiterated by the Hon’ble Supreme Court even in N. Mohan (supra), the remedies under Order IX Rule 13 of the Code and under Section 96 of the Code, are simultaneous and operate paralelly and cannot be said to be substitutes of each other. An appellant can very well file an application under Order IX Rule 13 and simultaneously an appeal against the self-same ex parte order and is required merely to wait for the outcome of the Order IX Rule 13 application for the appellant not to be precluded from pursuing the other remedy of appeal.
Thus, citing the pendency of the proceeding arising out of the Oder IX Rule 13 application in a subsequent appeal does not come to the aid of the appellant, nor does it attract any ingredient of Section 14 of the Limitation Act, 1963.
In such view of the matter, we are of the opinion that no sufficient cause has been made out at all by the appellant in respect of the delay of the inordinate period of thirteen and half years (about 4938 days) in filing the present appeal.
The only dilemma before us is whether to impose costs on the appellant, which we choose not to do in view of the appellant having already spent huge amounts in pursuing frivolous litigations.
With the above observations, CAN 1 of 2025 is dismissed on contest without any order as to costs.
Consequentially, FAT 264 of 2025 is dismissed as time-barred.
Accordingly, CAN 2 of 2025, CAN 3 of 2025, CAN 4 of 2025 as well as CAN 5 of 2025 stand dismissed as well.
There will be no order as to costs.
Urgent Photostat certified copies of this judgment, if applied for, be made available to the parties upon compliance with the requisite formalities.
I agree.