P. KLRAN KUMAR versus A.S. KHADAR AND ORS.

Citation: [2002] 3 S.C.R. 775 · Decided: 03-05-2002 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed
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Judgment (excerpt)

t 
r 
P. KlRAN KUMAR 
A 
v. 
A.S. KHADAR AND ORS. 
MAY 3, 2002 
[V.N. KHARE ANOASHOK BHAN, JJ.] 
B 
Code of Civil Procedure, 1908-0rder IX Rule 13, Explanation-Scope 
of-Ex-parte decree-Appeal-Dismissal on ground of/imitation-Application 
for setting aside ex-parte decree-Maintainability of-Held, such application. C 
not maintainable. 
The question arose for consideration was whether the dismissal of an 
appeal against an ex-parte decree on the ground of limitation attracts the 
provisions of explanation to Order IX Rule 13, CPC and creates a bar to the 
maintainability of an application under Order IX Rule 13, CPC for setting D 
aside an ex~parte decree. 
Allowing the appeals, the Court 
HELD : I.I. Reading of the explanation to Order IX Rule 13, CPC clearly 
indicates that if any appeal against an ex-pa rte decree had been disposed of on E 
any ground other than the ground that the appellant has withdrawn the appeal, 
no application for setting aside the ex-parte decree under Order IX Rule 13, 
CPC would be entertained. The words of the explanation are clear and 
unambiguous. [781-A, B[ 
1.2. In the instant case admittedly an appeal had been preferred by 
respondent No. 2 and the same was dismissed as barred by limitation. In view 
F 
of the dismissal of the earlier appeal, the application under Order IX Rule 13, 
CPC for setting aside an ex-parte decree/award was not maintainable and the 
Tribunal erred in setting raised the ex-parte decree/award made against the 
respondents and also the High Court failed to notice this point in spite of the G 
fact that the same had been specifically raised. [781-D, E[ 
Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, [1982[ 2 SCC 596, 
referred to. 
775 
H 
776 
SUPREME COURT REPORTS 
[2002] 3 S.C.R. 
A 
Kewal Ram v. Smt. Ram Lubhai and Ors., AIR (1987) SC 1304 and 
B 
Kunhayammed and Ors. v. State of Kera/a and Ors., (2000] 6 SCC 359, 
distinguished. 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3285-86 of 
2002. 
From the Judgment and Order dated I l.12.2000 and 3.4.2001 of the 
Kamataka High Court in C.R.P. No. 1345/2000 and R.P. No. 104 of2001. 
S.R. Bhat, Naveen R. Nath, Ms. Lalit Mohini Bhat and Ms. Hetu Arora 
C for the Appellant. 
D 
Pawan Kr. Bahl, M. M. Kashyap, K.L. Nandwani and Vipin Nandwani 
and Debasis Misra for the Respondents. 
The Judgment of the Court was delivered by 
BHAN, J. Delay condoned. 
Leave granted. 
E 
The short point involved in these appeals is as to whether "the dismissal 
of an appeal against an ex-parte decree on the ground that the same is barred 
by limitation attracts the provisions of explanation to Order IX Rule 13 of the 
Coqe of Civil Procedure and creates a bar to the maintainability of an application 
under Order IX Rule 13, CPC for setting aside an ex-parte decree. 
,... 
F 
Appellant, (then a minor), while going from School to his house at 
_... 
Lakshmi Talkies, Andersonpet, KGF, Bangalore met with an accident at about 
l .30 p.m. on 30th November, 1988 with a motorcycle bearing Registration No. 
MEB 910. Respondent No. l, as Khadar was driving the motorcycle which is 
owned by respondent No. 2 (respondent No. I is the son of respondent No. 
G 2). Appellant, through his father, filed a claim petition under Section I JOA of 
the Motor Vehicles Act on 28th March, 1989 for a total sum of Rs. 1,50,000 
as compensation. Respondent Nos.' I and 2 appeared through a common 
advocate who filed his Vakalatnama on their behalf before the Motor Accident 
Claims Tribunal, Kolar (for short 'the Tribunal'). On 3rd December, 1991 the 
counsel appearing for the respondents filed a memo before the Tribunal -
H seeking to withdraw from the case for want instructions. Thereafter respondents 
P. KIRAN KUMAR v. A.S. KHA DAR [ASH OK BHAN, J.] 
777 
neither put an appearance in person nor through a counsel. Tribunal set the A 
respondents ex-parte. After taking evidence of the appellant, Tribunal allowed 
the claim in part and awarded a sum of Rs. 1,00,000 as compensation, out of 
which Rs. 75,000 was directed to be kept in an fixed deposit till the appellant 
• 
attained majority and the balance amount of Rs. 25,000 was directed to be paid 
to the appellant's father for meeting the treatment and other incidental expenses. B 
Since the order was not complied with, execution petition No. 6/1996 
was filed before the Principal District Judge, Kolar. Respondent No. I was 
~ 
served and' he put in his appearance before the executing court on 1st 
January,
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