- In G.N.R. Babu @ S.N. Babu vs Dr. B.C. Muthappa, the apex court observed that the appellant,while challenging ex parte decree by filing an appeal, can always point out fromthe record of the trial court that the order passed to proceed with the suit ex parteagainst him was illegal.
- Only when the application made by a defendant underRule 13 of Order IX of CPC is dismissed that such a defendant cannot agitate inthe appeal against ex parte decree claiming that suit was illegal or incorrect.
- Though the appellant would not beentitled to lead evidence in appeal for making out a sufficient cause for hisabsence before the trial court, he can always argue based on the record ofthe suit that either the suit summons was not served upon him or that evenotherwise also, the trial court was not justified in proceeding ex parte against him.(livelaw.in, n.d.)
- The court was dealing with a civil appeal that the high court had confirmed the ex parte decree on an erroneous basis that the failure to serve the suit can be agitated only in an application for setting aside ex parte decree by invoking Rule 13 of Order IX of CPC.
- The advocate for the respondent contended that, if the appellant wanted an appeal against the ex parte decree, he could do so only by challenging the merits of the decree.
- Advocate Arvind Kamath relied on Bhanu Kumar Jain v. Archana Kumar &Anr (2005) for his contention.
- The judge noticed that in this case the question was when the defendant had not availed the remedy under Rule 13 of Order IX.
- The appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before the trial court.
- However, he can argue based on the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in its decision.
- The Supreme court also highlighted that without verifying the address of the defendant was correct, summons was ordered to be served through Registered Post AD.
- Thus, there was no warrant for proceeding ex parte against the appellant-defendant.
- The appeal was granted.
- Justice Ajay Rastogi and Abhay S. Oka passed the judgement on 6th September 2022.
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