-1- 2025:CGHC:32978 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 779 of 2019 Rammilan Cherwa S/o Late Ramjiyan Cherwa, Aged About 48 Years Caste Cherwa, R/o Village Muddhowa P.S. And Post Kelhari Tehsil Manendragarh, District Korea Chhattisgarh.............Non-Applicant/Plaintiff ... Petitioner versus 1 - Mohan Cherwa S/o Late Dashrath Cherwa, Aged About 60 Years Caste Cherwa, R/o Village Mudhdhowa P.S. And Post Kelhari Tehsil Manendragarh District Korea Chhattisgarh. 2 - Sonlal @ Semlal Cherwa S/o Late Dashrath Cherwa Aged About 55 Years Caste Cherwa, R/o Village Mudhdhowa P.S. and Post Kelhari Tehsil Manendragarh District Korea Chhattisgarh. ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner :Mr. Shakti Raj Sinha, Advocate For respondents No. 1 & 2 : Mr. Sanjeev Verma, Advocate For State : Mr. Dashrath prajapati, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 15.07.2025 1) The petitioner has challenged the order dated 03.09.2019 passed by the learned Digitally signed by NADIM MOHLE -2- Ist Additional District Judge, Manendragarh, District Koria in MJC No.1/2017, whereby the application filed under Order 9 Rule 13 of the Code of Civil Procedure (for short, CPC) was allowed, the ex parte judgment and decree passed by the learned appellate Court was set aside, and Civil Appeal No.2A/2007 was restored to its original number and fixed for further hearing. 2) Mr. Sinha, learned counsel for the petitioner would submit that the petitioner had filed a civil suit for declaration of title and permanent injunction against the defendant, which was registered as Civil Suit No.15A/2006. He would further submit that the said civil suit was dismissed by the learned trial Court on 26.12.2006. Aggrieved by the said judgment and decree, the petitioner preferred a regular civil appeal, which was registered as Civil Appeal No.2A/2007. He would contend that though summons were duly served upon the respondents, but none appeared before the appellate Court, as a result of which, judgment and decree was passed ex parte in favour of the petitioner on 14.02.2008. 3) Mr. Sinha would further submit that the respondents moved an application under Order 9 Rule 13 CPC before the appellate Court for setting aside the ex parte decree, which was allowed by the learned appellate Court on 03.09.2019. Against the said order, the present writ petition has been filed. 4) He would submit that the application under Order 9 Rule 13 CPC was not maintainable before the appellate Court, and that the learned appellate Court has committed an error of law in entertaining and allowing such an application. -3- 5) On the other hand, Mr. Verma, learned counsel for the respondents No.1 & 2 would submit that merely mentioning a wrong provision would not render the application non-maintainable. He would submit that the application was in substance filed for setting aside the ex parte decree passed by the appellate Court, and the learned appellate Court rightly allowed the same after recording a finding that summons were not duly served upon the respondents. He would submit that the petition deserves to be dismissed. 6) Heard learned counsel for the parties and perused the material available on record. 7) The petitioner in writ petition has not taken ground to the effect that application moved under Order 9 Rule 13 CPC was not maintainable before the learned appellate Court, but being legal issue it can be raised. 8) It is well-settled that an application under Order 9 Rule 13 CPC lies only before the learned trial Court or the Court of original jurisdiction for setting aside an ex parte decree. The said provision is not applicable at the appellate stage. 9) In the present case, the civil suit filed by the petitioner was dismissed, and thereafter the appeal preferred by him, i.e. Civil Appeal No.2A/2007, was decreed ex parte. The respondents moved an application under Order 9 Rule 13 CPC before the appellate Court, and the same was allowed by the learned appellate Court vide order dated 03.09.2019. -4- 10) I have no hesitation in holding that the application under Order 9 Rule 13 CPC was not maintainable before the appellate Court. In such a situation, the respondents ought to have moved an appropriate application under Order 41 Rule 21 CPC before the appellate Court for rehearing of the appeal, subject to satisfaction of the conditions prescribed therein. The impugned order dated 03.09.2019 is, therefore, not sustainable in law and is hereby set aside. 11) However, the respondents would be at liberty to move an appropriate application under Order 41 Rule 21 CPC before the learned appellate Court, if so advised. 12) The issue of limitation would be considered by the learned appellate Court, taking a liberal view, as the matter remained pending before this Court. 13) Accordingly, the petition is allowed. Sd/- (Rakesh Mohan Pandey) Judge Nadim