Page No.# 1/14 GAHC010146522023 2026:GAU-AS:9868 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/205/2023 M/S GYAN SAGAR FOUNDATION A REGD. SOCIETY HAVING ITS REGD. OFFICE AT 1ST FLOOR, CENTER POINT BUILDING, G.S.ROAD, ULUBARI, GUWAHATI- 781007, DISTRICT- KAMRUP (M), ASSAM, REPRESENTED BY ITS PRESIDENT, SRI ASHOK KUMAR PANSARI, AGED ABOUT 59 YEARS, S/O- LATE BASUDEO PANSARI, RESIDENT OF ROYAL RESIDENCY, SIKARIA COMPOUND, BY THE SIDE OF VIP SUITCASE SHOWROOM, CHRISTIANBASTI, OPPOSITE HOTEL PRAGATI MANOR, GUWAHATI- 781005, DISTRICT- KAMRUP (M), ASSAM VERSUS SUBHASH SARMA AND 2 ORS. S/O- LATE UDAY SARMA, R/O- BETKUCHI, GORCHUK, GUWAHATI- 781035, KAMRUP (M), ASSAM 2:SHRI AMITABH SARMA S/O- SHRI SUBHASH SARMA R/O- BETKUCHI GORCHUK GUWAHATI- 781035 KAMRUP (M) ASSAM 3:SHRI JAGADISH SHARMA S/O- LATE MADHUNATH SARMA RESIDENT OF LANKESWAR JALUKBARI P.S. JALUKBARI GUWAHATI- 78101 Advocate for the Petitioner : MR JITENDRA DAS, MR. D MOZUMDER,MR. SAILENDRA DEKA Page No.# 2/14 Advocate for the Respondent : MS DIPSY RAJA (R-1 to 2), MR S GAUTAM(R1,2),MS N BEGUM(R1,2),MR. K M MAHANTA(R1,2),MR K K MAHANTA (Sr. Adv.)(R1,2),R GOGOI (R- 1,2),MR. K R BORA (R-1,2),MR U S BORGOHAIN (R-1 to 2),MR. R ALI (R-1 to 2) BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 17.07.2026 Heard Mr. D. Mazumdar, learned Sr. Counsel, assisted by Mr. S. Deka, learned counsel for the petitioner. Also Heard Mr. K.K. Mahanta, learned Sr. Counsel, assisted by Mr. K.M. Mahanta, learned counsel for the respondent. 2. This Civil Revision Petition, under Section 227 of the Constitution of India, is preferred by the petitioner, namely, M/S Gyan Sagar Foundation, challenging the order dated 20.06.2023, passed by the learned Civil Judge No. 3, Kamrup (M), Guwahati (Trial Court herein after) in Misc. (J) Case No. 264/2019, also the impugned Order, dated 20.06.2023, passed by the learned Civil Judge No.3, Kamrup(M), passed in an application under Order 9 Rule 13 of the CPC, being Misc(J) Case No.265/2019 praying for setting aside the ex-parte judgment and decree dated 28.02.2018, passed in Title Suit No.501/2013. 3. It is to be noted here that vide impugned order, dated 20.06.2023, the learned Trial Court had rejected the application under section 5 of the Limitation Act, 1963 filed by the petitioner praying for condonation of delay of 312 days, as not maintainable and consequently, also dismissed the application filed under Order 9 Rule 13 of the CPC. Page No.# 3/14 4. Mr. Mazumdar, learned counsel for the petitioner, M/S GYAN SAGAR FOUNDATION, a registered Society, having its registered office at 1st Floor, Center Point Building, G.S. Road, Ulubari, Guwahati - 781007, District Kamrup(M), Assam, represented by its President, Sri Ashok Kumar Pansari, had instituted a Title Suit, being T.S. No. 501 of 2013, before the learned Civil Judge No.3, Kamrup (M) against the present respondents, praying for declaration, specific performance of agreement; permanent injunction and other consequential reliefs. In the said suit, the respondents herein, as defendants, entered appearance and contested the suit by filing written statement along with counter claim. But, the suit came to be dismissed for non-prosecution vide order dated, 14.09.2016. However, the learned Court below proceeded with the counter claim filed by the defendant Nos.1 and 2, and decreed the same vide Judgment and Decree dated 28.02.2018. Thereafter, the defendants No.1 and 2 had instituted title execution proceeding, being Title Execution Case No. 56/2018. Then coming to know about the said fact, the petitioner herein had filed an application under Section 5 of the Limitation Act for condoning the delay, upon which Misc. (J) Case No. 264/2019 was registered, and also filed an application under Order 9 Rule 13 CPC, for setting aside the ex-parte judgment, upon which Misc (J) Case No.265/2019 was registered. 4.1. Mr. Mazumdar also submits that vide impugned Order, dated 20.06.2023, passed by the learned Civil Judge No.3, Kamrup(M) in Misc. (J) Case No.264/2019, arising out of the Title Suit No.501/2013, dismissed the application under section 5 of the Limitation Act, 1963 filed by the petitioner praying for condonation of delay of 312 days in filling the application under Order 9 Rule 13 of the CPC, being Misc (J) Case Page No.# 4/14 No.265/2019, praying for setting aside the ex-parte Judgment & Decree dated 28.02.2018, passed in Title Suit No.501/2013, solely on the ground that since the decree has been passed in the counterclaim against the petitioner/plaintiff on contest, therefore, the application under Order 9 Rule 13 of the CPC, is not maintainable and since the Order 9 Rule 13’s application is not maintainable, therefore, the application for condonation of delay is also not maintainable. 4.2. Mr. Mazumdar, also submits that being aggrieved the petitioner has preferred the present application under Article 227 of the Constitution of India. He also submits that the learned Court below had committed jurisdictional error while rejecting the Section 5 application, though sufficient reason was assigned for the delay. He also submits that the learned Court below had decided to proceed ex-parte against the petitioner in the counter claim, based upon the report of the Process Server, who had reported that he had not found the petitioner in the address although the same is an Office. Mr. Mazumdar also submits that the impugned order suffers from jurisdictional error and also suffers from irregularity and on such counts; the same requires interference of this Court. 4.3. Mr. Mazumdar also submits that petitioner herein also filed an appeal before the learned Appellate Court and the same is also pending for disposal. 5. Notably, when this Court put a query to Mr. Mazumdar, as to whether the present petition under Article 227 of the Constitution of India is maintainable, as under Order 43 Rule 1(c) CPC, an appeal lies against a rejection order, under Order 9 Rule 13 CPC, and while alternative remedy is available and the petitioner has been availing the same by filing an appeal Page No.# 5/14 before the appellate forum, Mr. Mazumdar submits that since the learned Trial Court had committed gross jurisdictional error and the order being passed in flagrant disregard of law and thereby occasioning failure of justice, the same can be interfered with under Article 227 of the constitution of India. 6. Per contra, Mr. Mahanta, learned counsel for the respondent also raised the issue of maintainability of this petition. He submits that under Order 43 Rule 1(d) CPC, an appeal lies against an order of rejection of an application under Order 9 Rule 13 CPC. In support of his submission, Mr. Mahanta, has referred to a decision of Hon’ble Supreme Court in The Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum and Anr., reported in 2023 INSC 1065, (Justices B.V. Nagarathna and Ujjal Bhuyan). Mr. Mahanta also pointed it out that when alternative remedy is available and the petitioner herein already filed an appeal against the impugned order, this petition is not maintainable on this Court also. Therefore, he has contended to dismiss this petition. 7. Having heard the submission of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record and also perused the impugned order, dated 20.06.2023. Also gone through the decision referred by Mr. Mahanta, learned counsel for the respondent. 8. The basic facts herein this case, are not in dispute. The Title Suit, being T.S. No. 501 of 2013, instituted by the present petitioner, came to be dismissed for non-prosecution, vide order dated, 14.09.2016. However, the counter claim filed by the respondent/defendant was decreed vide Page No.# 6/14 judgment and decree dated 28.02.2018. Thereafter, the title execution proceeding, being Title Execution Case No. 56/2018 was initiated. Then coming to know about the said fact, the petitioner herein had filed Misc (J) Case No.264/2019, under section 5 of the Limitation Act for condoning the delay, and Misc (J) Case No.265/2019 under order 9 rule 13 CPC for setting aside the ex-parte judgment, but, vide impugned Order dated 20.06.2023 the same were rejected. 9. In view of the submissions and counter submissions advanced by learned counsel for both the parties, and also in the given factual scenario, the issue to be addressed by this Court first is to whether the present petition under Article 227 is maintainable or not. Legal Trajectory: 10. Order 43 Rule 1(d) CPC explicitly provides for an appeal against an order under Order 9 Rule 13 rejecting an application (in a case open to appeal) to set aside a decree passed ex parte. The provision read as under:- Appeals From Orders:- An appeal shall lie from the following orders under the provision of Section 104, namely, ……….. (d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte; 10.1. Thus, the statutory provision, i.e. Order 43 Rule 1(d) CPC is very clear and unambiguous that only an appeal will lie against an order under Rule 13 of Order 9 rejecting an application for an order to set aside a Page No.# 7/14 decree passed ex parte. Precedents presently occupying the field:- 11. A three-Judge Bench of Hon’ble Supreme Court in the case of Bhanu Kumar Jain v. Archana Kumar and Anr., reported in (2005) 1 SCC 787 (Justices N. Santosh Hegde, B.P. Singh, and S.B. Sinha), while dealing with the issue, has clarified the remedies against an ex-parte decree and held that dismissal of an Order 9 Rule 13 application is appealable under Order 43 Rule 1(d). 11.1. A two-Judge Bench of Hon’ble Supreme Court also in the case of The Koushik Mutually Aided Cooperative Housing Society (supra), (Justices B.V. Nagarathna and Ujjal Bhuyan), reiterated that dismissal of an Order 9 Rule 13 application is appealable under Order 43 Rule 1(d) CPC. A civil revision is not maintainable when an express appellate remedy exists. The Court also emphasized that revision is not a substitute for appeal. 11.2. An order dismissing an application under Order 9 Rule 13 CPC (for setting aside an ex-parte decree) is an appealable order, not primarily a revisable one. Alternative Remedy vs. Constitutional Remedy under Article 227:- 12. It is also well settled that when alternative remedy is available by way of an appeal of review, the constitutional remedy under Article 227 of the Constitution of India is not available. In the case of Sadhana Lodh vs. National Insurance Co. Ltd. and Anr., reported in (2003) 3 SCC 524, Hon’ble Supreme Court has held as under:- Page No.# 8/14 “6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta Rohtagi [(2002) 7 SCC 456 : 2002 SCC (Cri) 1788] ). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 CPC, in Page No.# 9/14 such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution.” 12.1. Subsequently, in the case of Mohamed Ali vs. Jaya & Ors. CIVIL APPEAL NO. 4113 of 2022, With CIVIL APPEAL NO. 4114 of 2022, Hon’ble Supreme Court has held as under:- 21. At this stage, the decision of this Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society; reported in (2019) 9 SCC 538, is required to be referred to. In the said decision, it is observed and held by this Court that wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under CPC, will deter the High Court and therefore, the High Court shall not entertain the revision under Article 227 of the Constitution of India especially in a case where a specific remedy of appeal is provided under the CPC itself. While holding so, it is observed and held in paragraphs 11 to 13 as under:— “11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly Page No.# 10/14 available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan reported in (2000) 7 SCC 695], this Court held that “though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well-recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy”. 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision Page No.# 11/14 in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675], pointed out in Radhey Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67] that “orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts”. 13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.” 22. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, the High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India against the ex-parte judgment and decree passed by the learned Trial Court in view of a specific remedy of appeal as provided under the Code of Civil Procedure itself. Therefore, the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the ex-parte judgment and decree passed by the learned Trial Court and in quashing and setting aside the same in exercise of powers under Article 227 of the Page No.# 12/14 Constitution of India.” 13. In the instant case, vide impugned Order, dated 20.06.2023, the application filed under section 5 of the Limitation Act for condoning the delay, filed by the petitioner, upon which Misc (J) Case No.264/2019, was registered and also the application filed under Order 9 Rule 13 CPC, for setting aside the ex-parte judgment, upon which Misc (J) Case No.265/2019, was registered, were rejected. For addressing the grievance against such dismissal, the remedy of appeal is provided under Order 43 Rule 1(d) CPC. The language used in the said provision is very clear and unambiguous, that only an appeal will lie against an order under Rule 13 of Order 9 rejecting an application for an order to set aside a decree passed ex-parte. 13.1. The law, on this point, is also well settled in the three Judges Bench decisions of Hon’ble Supreme Court in the case of Bhanu Kumar Jain(supra) and also in two Judges Bench decision in Koushik Mutually Aided Cooperative Housing Society (supra). Mr. Mahanta, learned counsel for the respondent, has also rightly pointed this out referring to the decision in Koushik Mutually Aided Cooperative Housing Society (supra), and the ratio laid down therein also fortified his submission. 13.2. Besides, alternative remedy under Order 43 Rule 1(d) CPC, is available. In fact the petitioner herein has, as submitted by Mr. Mazumdar, learned counsel for the petitioner, already preferred an appeal against the impugned order, dated 20.06.2023. , 13.3. Moreover, in the case of Sadhana Lodh(supra) it is well settled Page No.# 13/14 that Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Said proposition is also affirmed in subsequent decision, in Mohamed Ali (supra), wherein it has been held that the High Court shall not entertain the revision under Article 227 of the Constitution of India especially in a case where a specific remedy of appeal is provided under the CPC itself. It is also well settled in A. Venkatasubbiah Naidu (supra) that it is a well-recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy. Further, it is well settled in the decision of Hon’ble Supreme Court Virudhunagar Hindu Nadargal Dharma Paribalana Sabai (supra) that the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. 14. Thus, application of aforesaid principles to the given factual matrix of the case in hand, left no doubt in the mind of this Court that the present petition is not at all maintainable. It is not maintainable, basically, for following three reasons:- (i) The impugned order is an appealable order in view of Order 43 Rule 1(d) CPC, (ii) The petitioner has admittedly filed an appeal and the same is Page No.# 14/14 pending before the appellate forum; (iii) When alternative remedy is available, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. 15. In the result, this Civil Revision Petition is found to be not maintainable, and accordingly, the same stands dismissed, leaving the parties to bear their own cost. Before parting with the record, this Court is inclined to make it clear that the present petition is dismissed only on the ground of maintainability, and this Court is not entering into the merit of the same. The learned Appellate Court shall, therefore, proceed to dispose of the appeal without being influenced by any of the observation made in this order. JUDGE Comparing Assistant