N. Mohan vs R. Madhu

3. Brief facts which led to filing of this appeal are as follows:-

According to the respondent, it was agreed that the said amount will be returned to the respondent with an interest of 18% per annum. The appellant agreed to return the said amount within two months; but the appellant has not paid the amount. On the other hand, the appellant is said to have issued two post-dated cheques to the respondent, one for an amount of Rs.25,00,000/- and another for an amount of Rs.20,00,000/-. When the said cheques were presented for collection on 10.03.2015, the same were returned with the endorsement that “payments stopped by the drawer”. The respondent-plaintiff filed a civil suit being OS No.76 of 2015 before the Additional District Judge, Tiruchirappalli. The said suit was decreed ex-parte on 09.10.2015.

4. Order IX Rule 13 CPC Proceedings:- The appellant- defendant filed IA No.327 of 2016 in OS No.76 of 2015 under Section 5 of the Limitation Act to condone the delay of 276 days in filing the petition under Order IX Rule 13 CPC to set aside the ex- parte decree. In the said application, the appellant has stated that summons was sent to the appellant’s old address at Trichy and the same was returned unserved and the ex-parte decree was passed 2 on 09.10.2015. It was averred in the said application that the appellant is residing in Chennai since January, 2014. The appellant has alleged that when he went to attend a case in CC No.240/2016 at Karur Court on 29.07.2016, he came to know about the passing of the ex-parte decree in OS No.76 of 2015. Thereafter, the appellant has taken steps to set aside the ex-parte decree and filed application under Section 5 of the Limitation Act - IA No.327 of 2016 to condone the delay of 276 days in filing the petition under Order IX Rule 13 CPC to set aside the ex-parte decree. The said petition was dismissed by the Additional District Judge by order dated 04.01.2017. The appellant has challenged the said order by filing revision being CRP (MD) No.257 of 2017 (NPD) before the High Court. Rejecting the contention of the appellant that he has been residing in Chennai, the learned Single Judge dismissed the said revision being CRP (MD) No.257 of 2017 (NPD) by order dated 08.02.2017. The SLP(C) No.9829 of 2017 preferred against the said order also came to be dismissed by the Supreme Court by order dated 07.04.2017.

16. 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, 11 the appellant cannot fall back upon the remedy under Order IX Rule 13 CPC.

17. In the present case, the respondent has filed the Money Suit being OS No.76 of 2015 for recovery of Rs.46,98,500/- together with interest and the said suit was decreed ex-parte on 09.10.2015. Execution petition being EP No.95 of 2016 was also filed for execution of the decree. As pointed out earlier, the appellant has filed application being IA No.327 of 2016 to condone the delay of 276 days in filing the application to set aside the ex-parte decree. In the said application, the appellant has stated that he has been residing at Chennai; whereas the notice was served at Trichy and therefore, he did not have knowledge about the filing of the said suit in OS No.76 of 2015 before the ADJ Court at Tiruchirappalli and the ex-parte decree was passed on 09.10.2015. The appellant has further averred that he came to know about the ex-parte decree and the execution petition only at the time when he appeared in CC No.240 of 2016 at Karur on 29.07.2016. As discussed earlier, the said application filed by the appellant seeking condonation of delay of 276 days in filing the application to set aside the ex-parte decree was dismissed by the order dated 04.01.2017. The revision and the SLP preferred by the appellant also came to be dismissed. 12

20. The delay of 546 days in filing the first appeal shall therefore be condoned with condition that the appellant should deposit Rs.20,00,000/- before the trial court-Principal District Judge, Tiruchirappalli, to the credit of OS No.76 of 2015 on or before 28.02.2020, failing which, the application for condonation of delay shall stand dismissed. On such deposit of Rs.20,00,000/- the same shall be invested in a nationalised bank for a period of six months with the provision of auto-renewal. The deposit of Rs.20,00,000/- 14 and also the earlier deposit of Rs.25,00,000/- would be subject to the outcome of the appeal. On deposit of Rs.20,00,000/-, the impugned judgment passed by the Madurai Bench of Madras High Court in CMP(MD) No.6566 of 2017 in AS(MD) SR No. 27805 of 2017 is set aside and this appeal is allowed. The delay in filing the appeal is condoned. The appeal shall be taken on file and the High Court shall proceed with the same in accordance with law. We make it clear that we have not expressed any opinion on the merits of the matter. It is also made clear that the criminal complaints filed under Section 138 of NI Act be proceeded on its own merits without being influenced by any of the views expressed by this Court or by the High Court.

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