THE KOUSHIK MUTUALLY AIDED COOPERATIVE HOUSING SOCIETY versus AMEENA BEGUM & ANOTHER
[2023] 15 S.C.R. 841, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[2023] 15 S.C.R. 841 : 2023 INSC 1065
841
CASE DETAILS
THE KOUSHIK MUTUALLY AIDED COOPERATIVE HOUSING 
SOCIETY
v.
AMEENA BEGUM & ANOTHER
(Civil Appeal No. 7903 of 2023)
DECEMBER 01, 2023
[B. V. NAGARATHNA AND UJJAL BHUYAN, JJ.]
HEADNOTES
Issue for consideration: Application ﬁ led by the Respondent seeking 
condonation of delay in ﬁ ling the petition to set aside the ex-parte decree was 
dismissed by Trial Court. Consequently, the petition ﬁ led 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 ﬁ led under 
Order IX Rule 13 CPC which was dismissed by the Trial Court. Order of 
the High Court whether justiﬁ ed.
Code of Civil Procedure, 1908 – Order IX r.13; s.115 – Appellant 
ﬁ led suit seeking a decree of speciﬁ c performance of an agreement to 
sell – Ex-parte decree passed – Respondent ﬁ led an application u/Order 
IX r.13 for setting aside of ex-parte decree along with an application 
for condonation of delay – Dismissed – Revision Petition ﬁ led u/s.115, 
High Court set aside the aforesaid order implying that the petition ﬁ led 
u/Order IX r.13 which had also stood dismissed was allowed – Propriety:
Held: When an application or petition ﬁ led 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 eﬀ ective 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 u/s.115 of the
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
842
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]
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7903 of 2023.
From the Judgment and Order dated 08.01.2021 of the High Court for 
the State of Telangana at Hyderabad in CRP No.4866 of 2018.
Appearances:
C. S. Vaidyanathan, Gopal Sankaranarayanan, Sr. Advs., Vinay P. 
Tripathi, Ms. Monalisa Kosaria, B. Shravanth Shanker, B. Yeshwanth Raj, 
Vinayak Goel, Nitish Raj, Ms. Shivani Vij, Ms. Jhanvi Dubey, Advs. for 
the Appellant.
Sajan Poovayya, Sr. Adv., Mrs. Sanjanthi Sajan Poovayya, 
Yelamanchili Shiva Santosh Kumar, Rudrajit Ghosh, Tarun Gupta, Advs. 
for the Respondents. 
JUDGMENT / ORDER OF THE SUPREME COURT
ORDER
1. Leave granted.
2. Being aggrieved by order dated 08.01.2021 passed by the learned 
Single Judge of the High Court for the State of Telangana at Hyderabad in 
Civil Revision Petition No. 4866/2018, this appeal has been preferred. 
3.  We have heard  Sri C. S.
Vaidyanathan, learned senior counsel along 
with Sri Gopal Sankaranarayanan, learned senior counsel for the appellant 
and Sri Sajan Poovayya, learned senior counsel for the ﬁ rst respondent and
843
perused the material on record. The second respondent has been deleted 
from the array of parties in terms of this Court’s Order dated 25.04.2023.
4. Brieﬂ y stated, the facts are that the appellant herein had ﬁ led O.S. 
No.1144/1988 on the ﬁ le of the V-Senior Civil Judge, City Civil Court, 
Hyderabad seeking a decree of speciﬁ c performance of an agreement to 
sell dated 26.04.1985. In the said suit, the respondent(s) herein were set ex-
parte. Thereafter, an ex-parte decree was passed on 15.02.1999. It is stated 
that execution proceedings as against the ex-parte decree are still pending 
before the Executing Court. However, the ﬁ rst respondent herein ﬁ led an 
application on 07.01.2016 seeking setting aside of ex-parte decree dated 
15.02.1999 along with an application under Section 5 of the Limitation Act, 
1963 seeking condonation of 5767 days delay in ﬁ ling the said application 
seeking setting aside of ex-parte decree.
5.  By order dated 07.06.2018, the V-Senior Civil Judge, City Civil 
Court, Hyderabad dismissed I.A. No.30/2016 ﬁ led for seeking condonation 
of delay of 5767 days in ﬁ ling the application seeking setting aside of the 
ex-parte decree under Oder IX Rule 13 Code of Civil Procedure, 1908 
(‘CPC’ for the sake of convenience). The said application was considered 
by the Trial Court and by order dated 07.06.2018, the application seeking 
condonation of delay was dismissed. Consequently, the petition ﬁ led under 
Order IX Rule 13 CPC seeking setting
aside of the ex-parte decree also 
stood dismissed. 
6. Being aggrieved, the ﬁ rst respondent herein ﬁ led a Civil Revision 
Petition under Section 115 of the CPC before the High Court contending that 
Trial Court was not right in dismissing the application seeking condonation 
of delay of 5767 days in ﬁ ling the petition to set aside the ex-parte decree 
dated 15.02.1999.   
7. By the impugned order dated 08.01.2021, the High Court has 
set aside  Order  dated  07.06.2018  passed  in I.A. No.30/2016 in O.S. 
No.1144/1988, which also implies that the petition ﬁ led under Order IX 
Rule 13 CPC which had also stood dismissed has been allowed. In the Civil 
Revision Petition, the High Court condoned the delay of 5767 days in ﬁ ling 
the petition ﬁ led under Order IX Rule 13 CPC seeking setting aside the ex-
parte decree dated 15.02.1999 by directing the Trial Court to dispose of the 
petition ﬁ led under Order IX Rule 13 CPC and to complete the trial of the 
THE KOUSHIK MUTUALLY AIDED COOPERATIVE 
HOUSING SOCIETY v. AMEENA BEGUM & ANOTHER
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
844
suit expeditiously, within a period of four months from the date of receipt 
of certiﬁ ed copy of this order.
8. Being aggrieved by the said order passed in Civil Revision Petition 
by the High Court, the plaintiﬀ /appellant has preferred this appeal. 
As noted above, we have heard learned senior counsel for the 
respective parties and perused the material on record.
9. At the outset, this Court queried as to how a Civil Revision Petition 
was maintainable against an order passed by the Trial Court dismissing 
the application ﬁ led seeking condonation of delay in ﬁ ling the petition 
under Order IX Rule 13 CPC and consequently rejecting or dismissing 
the said petition also.
10. During the course of submissions, it was noted that, in fact, the 
rejection of a petition ﬁ led under Order IX Rule 13 CPC is an appealable 
order and, therefore under Order XLIII Rule 1(d) CPC, an appeal ought to 
have been ﬁ led before the High Court rather than a Civil Revision Petition 
under Section 115 of the CPC.
11. For the sake of immediate reference, Order XLIII Rule 1(d) CPC 
is extracted as under in juxtaposition to Section 115 of the CPC:
“Order XLIII Rule 1. Appeal from orders – An appeal shall lie from 
the following orders under the provisions of section 104, namely:-
(a) xxx
(c) xxx
(d) an order under rule 13 of Order IX rejecting an application (in 
a case open to appeal) for an order to set aside a decree passed ex-
parte.”
Section 115 –
Revision.
(1) The High Court may call for the record of any case which has 
been decided by any Court subordinate to such High Court and in 
which no appeal lies thereto, and if such subordinate Court appears-
a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
845
(c) to have acted in the exercise of its jurisdiction illegally or 
with material irregularity, 
the High Court may make such order in the case as it thinks ﬁ t:
Provided that the High Court shall not, under this section, vary or 
reverse any order made, or any order deciding an issue, in the course of 
a suit or other proceeding, except where the order, if it had been made in 
favour of the party applying for revision, would have ﬁ nally disposed of 
the suit or other proceedings. 
(2) The High Court shall not, under this section, vary or reverse any 
decree or order against which an appeal lies either to the High Court or 
to any Court subordinate thereto. 
(3) A revision shall not operate as a stay of suit or other proceeding 
before the Court except where such suit or other proceeding is stayed by 
the High Court.
Explanation.—In this section, the expression “any case which has 
been decided” includes any order made, or any order deciding an issue, in 
the course of a suit or other proceeding.”
12. As against the ex-parte decree, a defendant has three remedies 
available to him. First, is by way of ﬁ ling 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. 
13. The ﬁ ling 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.
THE KOUSHIK MUTUALLY AIDED COOPERATIVE 
HOUSING SOCIETY v. AMEENA BEGUM & ANOTHER
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
846
14. 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.”
15. 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.
16. 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 
eﬀ ective 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.
17. When there is an express provision available under the CPC or 
any statute under which an appeal is maintainable, by-passing the same,
847
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.
18. It is clariﬁ ed 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”. 
19. Realising this aspect regarding the maintainability of a revision 
petition before the High Court, Sri Sajan Poovayya, learned senior counsel 
submitted that liberty may be reserved to the ﬁ rst respondent herein to ﬁ le 
an appeal and if such an appeal is ﬁ led within a time frame to be granted 
by this Court, the issue of limitation in ﬁ ling the appeal under Order XLIII 
Rule 1(d) CPC may not be raised by the High Court 
By way of response, Sri C. S. Vaidyanathan, learned senior counsel 
submitted that if the impugned order is set aside and liberty is reserved to the 
ﬁ rst respondent herein, the appellant may not be prejudiced by such an order.
20. In the circumstances, we set aside the impugned order on the ground 
that the said order was passed in a Civil Revision Petition which was not at 
all maintainable under Section 115 of the CPC. However, liberty is reserved 
to the ﬁ rst respondent herein to ﬁ le an appeal under Order XLIII Rule 1(d) 
CPC, if so advised, on or before 31.12.2023.
21. If such
an appeal is ﬁ led before the High Court, the point of 
limitation ought not to be raised by the High Court.
22. It is needless to observe that the High Court shall dispose of the 
appeal to be ﬁ led by the ﬁ rst respondent herein in accordance with law.
23. All contentions on both sides are left open, to be advanced in the 
appeal to be ﬁ led before the High Court.  
24. This Appeal is allowed and disposed of in the aforesaid terms. 
No costs.
Pending application (s) shall stand disposed of.  
Headnotes prepared by: 
Appeal allowed.
Divya Pandey
THE KOUSHIK MUTUALLY AIDED COOPERATIVE 
HOUSING SOCIETY v. AMEENA BEGUM & ANOTHER