Scope of Order IX Rule 13 CPC — Independent and wider remedy (Para 7, 9) The Supreme Court held that proceedings under Order IX Rule 13 CPC are distinct from an appeal under Section 96 CPC. Even where an appeal against the original order has been dismissed, an application under Order IX Rule 13 CPC is maintainable if the applicant establishes non-service of summons or sufficient cause for non-appearance. The jurisdiction under Order IX Rule 13 is wider in enabling the Court to set aside an ex parte decree upon such satisfaction.

advocatemmmohan

CIVIL PROCEDURE CODE, 1908 — Order IX Rule 13 — Scope and applicability — Distinction from appeal under Section 96 CPC

Para 7, 8, 9

Order IX Rule 13 CPC provides an independent and wider remedy enabling a party to seek setting aside of an ex parte decree upon establishing (i) non-service of summons or (ii) sufficient cause preventing appearance — Held, remedy under Order IX Rule 13 is distinct from appellate remedy under Section 96 CPC — Even after dismissal of appeal, application under Order IX Rule 13 is maintainable if sufficient cause is shown — Courts below erred in rejecting application solely on ground of prior participation in appeal.

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SUCCESSION CERTIFICATE — Sections 372 & 383, Indian Succession Act, 1925 — Suppression/misstatement of material facts — Effect

Para 8

Where application for succession certificate contains material discrepancies or suppression of relevant facts, such certificate is liable to be revoked under Section 383 — Misdescription of parties and incorrect particulars affecting identity of legal heirs vitiate proceedings — Held, factual matrix justified invocation of Section 383.

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MINOR — Non-impleadment — Legal incapacity — Effect on proceedings

Para 8, 9

Non-impleadment of minor legal heir in succession proceedings — Minor incapable of responding to public notice or asserting rights independently — Failure to appoint lawful guardian despite knowledge of minor’s existence — Held, proceedings suffer from serious legal infirmity — Minor entitled to challenge proceedings upon attaining majority.

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EX PARTE DECREE — Setting aside — “Sufficient cause” — Consideration

Para 7, 8

Primary considerations under Order IX Rule 13 are due service of summons and existence of sufficient cause for non-appearance — Where party is minor and not properly represented, absence constitutes sufficient cause — Public notice not clearly indicating nature of proceedings further vitiates service.

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PARTIES — Necessary party — Determination

Para 6, 9

High Court erred in holding that appellant was not a necessary party — Legal heir having potential claim in estate is a necessary party — Non-impleadment results in denial of opportunity and prejudice — Such finding held unsustainable.

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JUDGMENT — Interference — When warranted

Para 9, 10

Concurrent findings of courts below liable to be interfered with where conclusions suffer from perversity and legal infirmity — Failure to appreciate rights of minor and statutory scheme under Succession Act and CPC — Impugned orders set aside.

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RESULT

Para 10, 11

Appeal allowed — Impugned orders set aside — Application under Order IX Rule 13 CPC allowed — Ex parte succession certificate quashed — Matter restored to trial court for fresh adjudication — Direction for expeditious disposal within one year.