The petitioner has filed this Civil Revision Petition as against the order dated 08.07.2009 in I.A.No.436 of 2006 in O.S.No.411 of 1990 passed by the learned District Munsif, Rasipuram in dismissing the application filed by the petitioner under Section 5 of the Limitation Act praying to set aside the ex-parte Preliminary Decree dated 09.03.1994.
2.The Trial Court while passing order in I.A.No.436 of 2006, dated 08.07.2009 has interalia come to the conclusion that the petitioner has projected the I.A.No.436 of 2006 after a lapse of 12 years from the date of passing of the Preliminary Decree and resultantly dismissed the application without costs.
3.According to the learned counsel for the revision petitioner, the revision petitioner is the sister of the second respondent/plaintiff, who has a share in the suit properties and the first respondent/plaintiff has not arrayed the revision petitioner as one of the parties to the main suit in O.S.No.411 of 1990 and the suit has been filed before the trial Court to defraud the petitioner and in the main suit a Preliminary Decree has been passed on 08.07.2009 and a Final Decree proceedings have been initiated in I.A.No.695 of 2005 and in the Final Decree application a Commissioner has been appointed and he is to file his report and at this stage, the matter is pending and moreover the trial Court has committed an error in coming to the conclusion that the petitioner has projected the I.A.No.436 of 2006 after a long lapse of 12 years and the revision petitioner has no other alternative but to file an application to set aside the exparte Preliminary Decree by condoning the intervening delay and since the impugned order of the trial Court in I.A.No.436 of 2006 suffers from material irregularity and patent illegality the same needs to be set aside by this Court sitting in revision.
4.Expatiating his submission, the learned counsel for the revision petitioner cites the decision of the Honourable Supreme Court in Rajkumar -vs- Sardari Lal and Others (2004) 2 Supreme Court Cases 601 at Page-602 wherein it is among other things held that;
'The word "he" in Order 9 Rule 13 cannot be rigidly construed so as to exclude the person who has stepped into the shoes of the defendant'.
5. He also relies on the decision of this Court in M.George -vs- M.Albert (2005) 3 MLJ 327 wherein it is held that;
'The Code of Civil Procedure is designed to facilitate justice and not a penal enactment and therefore, the order of the Lower Court on payment of cost since the application filed belatedly has been confirmed.'
6. Also, the learned counsel for the revision petitioner brings it to the notice the decision of this Court in Ramjisingh Bhulian Singh -vs- Tarun K. Shah and others 2002 AIHC 4035-4036 wherein it is among other things held that;
'The application for setting aside the exparte decree and the execution petition filed by the petitioner who was stranger to decree would be maintainable'.
7. In response, the learned counsel for the first respondent/plaintiff submits that the revision petitioner is a stranger to the suit and since she is not a party to the main suit proceedings, she is not entitled to avail the benefits of Order 9 Rule 13 of Civil Procedure Code inasmuch as the ingredients of the said provision speaks only of the word defendant and when the revision petitioner admittedly is not a party to the proceedings in the main suit and when an exparte preliminary decree has admittedly been passed by the trial Court, then, the revision petition filed by the revision petitioner is not per se maintainable in law and on this score alone the revision petition has to be dismissed in limini.
8. In support of the contention that the revision petitioner cannot maintain the present revision petition before this Court, the learned counsel for the first respondent/plaintiff cites the decision in Smt.Santosh Chopra -vs- Teja Singh and Another AIR 1977 DELHI 110, wherein it is held that;
'Only the defendant in an action who can move an application under Order 9 Rule 13 and further, a person who is not a party, though he may be interested in the suit, is not entitled to apply under this Rule etc.'
9. Moreover, the learned counsel for the first respondent/plaintiff seeks in aid of the decision in Budhai Nepal Chandra Lalit Moban Saha Firm and another -vs- Sudhangshu Ranjan Dev and Others AIR 1976 GAUHATI 7, wherein it is held as follows;
'Where in a suit, one of the defendants is a minor not represented by any guardian, the exparte decree passed in the suit cannot be binding on him as he cannot be treated as a defendant in the suit. Consequently, an application by the minor defendant under Order 9, Rule 13 is not maintainable. In view of the matter that the exparte decree passed in the suit was not effective against the minor defendant, there was no necessity to set aside the decree so far as the minor was concerned.'
10. Added further, the learned counsel for the first respondent/plaintiff also draws the attention of this Court to the decision in Subahu Kumar Jain -vs- Jagdish Prasad Choudhury and others AIR 1990 GAUHATI 66, wherein it is held that;
'The application filed by a person who was not a "defendant" in the suit decided exparte is not maintainable.'
11. This Court has given its anxious consideration to the arguments advanced on either sides by the learned counsel appearing for the parties and noticed the same.
12. In this connection, it is useful to refer to Order 9 Rule 13 of the Civil Procedure Code which enjoins as follows:
"Rule-13: Setting aside decree ex parte against defendant-- In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of other defendants also.
Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
*Explanation-- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree."
13. From the reading of the above provision it is candidly crystal clear that when the exparte decree has been passed, the application is perfectly maintainable. But the core question that revolves in a narrow compass before this Court in the present case on hand is whether the revision petitioner who is a stranger to the main suit proceedings can project an application in I.A.No.436 of 2006 in O.S.No.411 of 1990 before the trial Court and against the dismissal of the said application and resultantly whether he is entitled to prefer the Civil Revision Petition in law.
14. On a careful perusal of the ingredients of Order 9 Rule 13 of the Civil Procedure Code, this Court is of the considered view that the said provision speaks only of 'Defendant' it does not speak of a stranger namely the revision petitioner in the present case before us. To put it precisely Order 9 Rule 13 applies only to a person who has been a party to the main proceedings and especially who has been arrayed as a 'defendant' in the said proceedings. When admittedly, the petitioner being an alien to main suit proceedings and in short when the revision petitioner is a stranger to the main suit proceedings ex facie this Court is of the considered view that the ingredients of Order 9 Rule 13 cannot be made use of, by the revision petitioner and in that view of this matter, this Court comes to an inevitable conclusion that the revision petition sans merits and resultantly the same fails.
15. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. Consequently, the order passed in I.A.No.436 of 2006 in O.S.No.411 of 1990, dated 08.07.2009 passed by the learned District Munsif, Rasipuram is affirmed by this Court for the reasons assigned in this revision. However, it is made clear that the dismissal of the Civil Revision Petition will not preclude the revision petitioner to seek appropriate remedy in the manner known to law if she is so advised. Consequently, M.P.No.1 of 2009 is closed.
mps To The Subordinate Judge, Poonamallee