THE KOUSHIK MUTUALLY AIDED COOPERATIVE HOUSING SOCIETY versus AMEENA BEGUM & ANOTHER

Citation: [2023] 15 S.C.R. 841 · Decided: 01-12-2023 · Supreme Court of India · Bench: B.V. NAGARATHNA, UJJAL BHUYAN · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[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-Se
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