ARJUN SINGH versus MOHINDRA KUMAR & ORS.

ARJUN SINGH versus MOHINDRA KUMAR & ORS.

An order made on an application under Order IX, Rule 7 of the Code of Civil Procedure, 1908, declining to set aside the direction to proceed ex parte, does not operate as res judicata to bar a subsequent application under Order IX, Rule 13 to set aside the ex parte decree, especially where the earlier application was incompetent regarding the procedural stage of the suit. The inherent powers under Section 151 CPC cannot be invoked where specific express provisions exist in the Code to address the situation.

Parties
Appellant/defendant: Arjun Singh; Respondents/plaintiffs: Mohindra Kumar & Ors.
Jurisdiction
India
Judgment Date
13 December 1963
Procedural Posture
Civil Appeal / Appeal by Special Leave From the Judgment and Order Dated May 6, 1963, of the Allahabad High Court in F.a.f.o. No. 116 of 1959
Outcome
Appeal allowed.
Legal Topics
Res Judicata, Ex Parte Decree, Order IX Rule 7, Order IX Rule 13, Order XVII Rule 3, Inherent Powers of Court (section 151 Cpc)
Civil Procedure Res Judicata Ex Parte Decree Order IX Rule 7 Order IX Rule 13 Order XVII Rule 3 Inherent Powers of Court (section 151 Cpc)

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Parties

Arjun Singh

Appellant/defendant

Mohindra Kumar & Ors.

Respondents/plaintiffs

Procedural Posture

Civil Appeal / Appeal by Special Leave From the Judgment and Order Dated May 6, 1963, of the Allahabad High Court in F.a.f.o. No. 116 of 1959

Legal Issues

  1. 1 Whether the principle of res judicata applies to the successive applications under Order IX, Rule 7 and Order IX, Rule 13 of the Code of Civil Procedure (CPC).
  2. 2 Whether there is a material difference between 'good cause' under Order IX, Rule 3 and 'sufficient cause' under Order IX, Rule 13 of the CPC.
  3. 3 Whether the rejection of an application under Order IX, Rule 7 bars a subsequent application under Order IX, Rule 13.

Ratio Decidendi

An order made on an application under Order IX, Rule 7 of the Code of Civil Procedure, 1908, declining to set aside the direction to proceed ex parte, does not operate as res judicata to bar a subsequent application under Order IX, Rule 13 to set aside the ex parte decree, especially where the earlier application was incompetent regarding the procedural stage of the suit. The inherent powers under Section 151 CPC cannot be invoked where specific express provisions exist in the Code to address the situation.

Court Disposition

Appeal allowed.

Orders

  • The application filed by the appellant under Order IX, Rule 13 for setting aside the ex parte decree in suit 134 of 1956 is remanded to the trial Judge for disposal on merits in accordance with law.
  • Appellant entitled to costs throughout. Costs incurred after the remand to be provided for by the Courts below.