G.N.R. BABU @ S.N. BABU versus DR. B.C. MUTHAPPA & ORS.

Citation: [2022] 11 S.C.R. 203 · Decided: 06-09-2022 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Case Partly allowed

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Judgment (excerpt)

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G.N.R. BABU @ S.N. BABU
v.
DR. B.C. MUTHAPPA & ORS.
(Civil Appeal No. 6228 of 2022)
SEPTEMBER 06, 2022
[AJAY RASTOGI AND ABHAY S. OKA, JJ.]
Code of Civil Procedure, 1908 – ss.96, 105 & Or.IX, r.13 –
Ex-parte decree against defendant – Appeal u/s.96 – Scope of
adjudication – Ex-parte decree was passed against the appellant-
defendant in the suit filed by first respondent – Plea of the appellant
that the High Court in appeal u/s.96 while confirming the decree
on merits proceeded on the basis that the issue regarding the failure
to serve the suit summons can be agitated only in an application
filed for setting aside ex-parte decree by invoking r.13 of Or.IX –
Correctness of – Held: The appellant while challenging ex- parte
decree by filing an appeal, can always point out from the record of
the trial court that the order passed to proceed with the suit ex-parte
against him was illegal – Though he would not be entitled to lead
evidence in appeal for making out a sufficient cause for his absence
before the trial court, he can always argue on the basis of the record
of the suit that either the suit summons was not served upon him or
that even otherwise also, the trial court was not justified in
proceeding ex-parte against him – Only when the application made
by a defendant u/r.13 of Or. IX is dismissed that such a defendant
cannot agitate in the appeal against ex-parte decree that the order
directing that the suit shall proceed ex-parte was illegal or incorrect
– However, in the present case, the appellant had not filed
application u/r.13 of Or.IX, therefore, such a contention can be raised
by him – Also, on facts proceeding ex-parte against the appellant
was not warranted – Impugned order passed by the High Court as
well as the decree of the Trial Court set aside – Further, on facts the
prayer for remand of the suit is accepted – Appellant to pay costs
of Rs.2,00,000/- to the first respondent – Original suit restored.
Code of Civil Procedure, 1908 – s.105 – Held: Under s.105
when a decree is appealed from, any error, defect or irregularity in
any order affecting the decision of the case can be set forth as a
ground of objection in the Memorandum of Appeal.
[2022] 11 S.C.R. 203
203
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SUPREME COURT REPORTS
[2022] 11 S.C.R.
Code of Civil Procedure, 1908 – Or.V, r.17 – Requirement
under – Non-fulfillment of – Ex-parte decree passed against the
appellant and second respondent observing that they did not appear
despite the service of summons – Held: Record shows that an attempt
to serve summons by the regular mode failed as the premises of the
appellant were found to be locked – Trial Court did not direct
affixing of a copy of the summons on the outer door of the premises
in which the appellant was residing, as required by r.17 of Or.V –
Without verifying whether the address of the appellant, as shown in
the cause title of the suit was correct, summons was ordered to be
served through Registered Post AD – Decree set aside.
Partly allowing the appeal, the Court
HELD: 1.1 In this case, the question is when the defendant
did not avail the remedy under Rule 13 of Order IX of CPC,
whether it is open for him to agitate in the regular appeal against
the decree that the trial court had no justification for proceeding
ex parte against the appellant. In such a case, though the appellant
would not be entitled to lead evidence in appeal for making out a
sufficient cause for his absence before the trial court, he can always
argue on the basis of the record of the suit that either the suit
summons was not served upon him or that even otherwise also,
the trial court was not justified in proceeding ex parte against
him. The reason is that under Section 105 of CPC, when a decree
is appealed from, any error, defect or irregularity in any order
affecting the decision of the case can be set forth as a ground of
objection in the Memorandum of Appeal. Thus, in such a case,
the appellant can always urge in an appeal against the decree
that an interim or interlocutory order passed during the pendency
of the suit affecting the decision of the case was illegal. Therefore,
the appellant, while challenging ex parte decree by filing an appeal,
can always point out from the record of the trial court that the
order passed to proceed with the suit ex parte against him was
illegal. As held in the case of Bhanu Kumar Jain, only when the
application made by a defendant under Rule 13 of Order IX of
CPC is dismissed that such a

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