2024 (2) TMI 3

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....for the appellant and Sri Sajan Poovayya, learned senior counsel for the first respondent and 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. Briefly stated, the facts are that the appellant herein had filed O.S. No.1144/1988 on the file of the V-Senior Civil Judge, City Civil Court, Hyderabad seeking a decree of specific 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 first respond....

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....etition, the High Court condoned the delay of 5767 days in filing the petition filed 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 filed under Order IX Rule 13 CPC and to complete the trial of the suit expeditiously, within a period of four months from the date of receipt of certified 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 maint....

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....rregularity, the High Court may make such order in the case as it thinks fit: 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 finally 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 stay....

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....nt (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file 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 or....

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....me, a Revision Petition cannot be filed. It is needless to  observe that in the absence of an appellate remedy, a revision may be maintainable. 18. It is clarified that once the Trial Court dismissed the application seeking condonation of delay in filing 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 first respondent herein to file an appeal and if such an appeal is filed within a time....