In Deepesh Maheshwari & Anr. v. Renu Maheshwari & Ors., the Hon’ble Supreme Court of India has held that dismissal of an appeal against an ex-parte decree does not bar the maintainability of an application under Order IX Rule 13 of the Code of Civil Procedure, 1908.
The dispute arose from succession proceedings initiated after the death of the deceased. The Respondents, daughters from the first marriage, obtained a succession certificate by representing themselves as the sole legal heirs without disclosing the existence of the second wife and minor son.
The succession certificate was granted ex-parte. The Appellant No. 1, being the minor son was not impeached in the proceedings. No lawful guardian was appointed to represent his interest, despite knowledge of his existence.
Upon attaining majority, the Appellant No. 1, along with Appellant No. 2 (mother), filed an application under Order IX Rule 13 CPC seeking setting aside of the ex-parte decree.
The said application was dismissed by the Ld. Trial Court. The dismissal was affirmed by the Ld. First Appellate Court and the Hon’ble High Court on the ground that an appeal had already been preferred against the ex-parte decree. Aggrieved thereby, the Appellants approached the Hon’ble Supreme Court of India.
The Hon’ble Supreme Court of India, upon examination, observed as follows:
The remedy under Section 96 CPC and Order IX Rule 13 CPC operate in distinct fields.
An appeal under Section 96 CPC entails examination on merits of the decree.
An application under Order IX Rule 13 CPC enables the applicant to establish sufficient cause for non-appearance.
Dismissal of an appeal does not bar recourse to Order IX Rule 13 CPC.
Order IX Rule 13 CPC confers an independent and wider jurisdiction.
The Hon’ble Court further observed that the Appellant No. 1, being a minor at the relevant time, was under a legal disability and incapable of taking steps in law.
It was further observed that the Respondents, despite having knowledge of the minor’s existence, failed to take steps for appointment of a lawful guardian, thereby vitiating the proceedings.
Thus, the Hon’ble court set aside the ex parte succession certificate and restored the proceedings for fresh adjudication. It further directed the concerned court to decide the matter expeditiously, preferably within one year.
The judgment reiterates that the remedy under Order IX Rule 13 CPC is independent in nature and cannot be defeated merely on account of dismissal of an appeal against an ex-parte decree.
#SupremeCourtOfIndia#CivilProcedureCode #Order9Rule13 #ExParteDecree #NaturalJustice#LegalUpdate #IndianJudiciary
