NDLI: The Koushik Mutually Aided Cooperative Housing Society Vs. Ameena Begum & Another

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Code of Civil Procedure
Content Type	Text
Resource Type	Law Order
Jurisdiction	India
Act(s) Referred	Code of Civil Procedure, 1908 (5 of 1908)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Issue for consideration: Application filed by the Respondent seeking condonation of delay in filing the petition to set aside the ex-parte decree was dismissed by Trial Court. Consequently, the petition filed under Order IX Rule 13 CPC seeking setting aside of the ex-parte decree was also dismissed. In revision, High Court set aside the order by which the application seeking condonation of delay was dismissed thereby allowing the petition filed under Order IX Rule 13 CPC which was dismissed by the Trial Court. Order of the High Court whether justified. Code of Civil Procedure, 1908 – Order IX r.13; s.115 – Appellant filed suit seeking a decree of specific performance of an agreement to sell – Ex-parte decree passed – Respondent filed an application u/Order IX r.13 for setting aside of exparte decree along with an application for condonation of delay – Dismissed – Revision Petition filed u/s.115, High Court set aside the aforesaid order implying that the petition filed u/Order IX r.13 which had also stood dismissed was allowed – Propriety:Held: When an application or petition filed under Order IX r.13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII r.1 CPC – Thus, Civil Revision Petition u/s.115 of the CPC would not arise when an application/petition under Order IX r.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 filing of revision u/s.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 r.1(d) CPC being available, revision under Section 115 of the CPC filed in the instant case was not maintainable – 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 filed – Impugned order set aside – Alternative Remedy. [Paras 16, 17]
Judge	N/A
Neutral Citation	2023 INSC 1065
Petitioner	The Koushik Mutually Aided Cooperative Housing Society
Respondent	Ameena Begum & Another
SCR	[2023] 15 S.C.R. 841
Judgement Date	2023-12-01
Case Number	7903

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The Koushik Mutually Aided Cooperative Housing Society Vs. Ameena Begum & Another

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