Mere Pendency of Order 9 Rule 13 Application Not Ground to Condon Delay: Karnataka High Court

"Review Jurisdiction Not a Forum for Rehearing or Correcting Lack of Diligence" –  In a significant decision Karnataka High Court has dismissed a Review Petition filed by the legal heirs of a defendant against the Court’s earlier refusal to condone a 7-year delay in filing a Regular First Appeal under Section 96 of the Civil Procedure Code (CPC). Emphasizing the limited scope of review jurisdiction, the Division Bench of Justice Anu Sivaraman and Justice Anant Ramanath Hegde held that there was no error apparent on the face of the record to justify interference, and the conduct of the petitioners lacked due diligence and bona fides.

The matter arose in Review Petition, seeking to reopen the order dated 14.06.2024 dismissing the appeal as time-barred. The Bench reiterated that review cannot be sought to relitigate the merits or seek a fresh opportunity where suppression of material facts and dilatory tactics are evident.

"Concurrent Remedies Under Section 96 and Order IX Rule 13 Do Not Excuse Delay in Absence of Due Diligence"

The petitioners argued that the time spent pursuing a pending Order IX Rule 13 application to set aside an ex parte decree should constitute a sufficient cause for condonation of delay under Section 5 of the Limitation Act. However, the Court rejected the contention, observing:

“Mere pendency of an application under Order IX Rule 13 of the Code does not automatically justify condonation of delay in filing a Regular First Appeal. It is well-settled that diligence and bona fides must be established.”

Quoting the earlier order in I.A. No.1/2024, the Court had noted:

“There is nothing on record to show that the appellants have exercised due diligence in prosecuting the application to set aside the ex parte decree. It appears that only when the execution proceeding reached the final stage, the appeal was filed.”

Conduct Reveals Delay Was Tactical, Not Unintentional

The ex parte decree for specific performance in O.S. No. 45/2015 was passed on 21.01.2017. Though an application under Order IX Rule 13 CPC (Misc. Petition No. 7/2018) was filed by defendant Chandrashekar (predecessor of petitioners), it was never diligently prosecuted. No stay was obtained. The Regular First Appeal was filed only in 2024, by which time Chandrashekar had died and execution was nearing conclusion.

The Court categorically held:

“The appeal was not filed in the normal course or in the interest of justice, but only when the decree became ripe for execution. Such conduct negates any claim of bona fide or urgency.”

Suppression of Execution-Related Orders Fatal to Review

The Court found that the petitioners had also suppressed material facts, particularly an adverse order passed in W.P. No. 17264/2023, wherein Chethan Kumar (son of Chandrashekar and co-appellant in RFA) had resisted execution by claiming independent title under Order XXI Rule 97 CPC.

The writ petition had set aside the Trial Court's acceptance of Chethan Kumar’s resistance, effectively removing the last barrier to execution. However, this was not disclosed in the review petition.

“The petitioners were aware of the proceedings in W.P. No. 17264/2023. Their failure to disclose the same amounts to suppression of material facts. Equitable relief cannot be granted to a party that comes to Court with unclean hands.”

Precedents Cited by Petitioners Found Inapplicable

The petitioners relied on Bhivchandra Shankar More v. Balu Gangaram More [(2019) 6 SCC 387] and N. Mohan v. R. Madhu [(2020) 15 SCC 475] to argue that pursuing one remedy (Order IX Rule 13) should not bar another (Section 96 appeal). The High Court clarified that while concurrent remedies are permissible, dilatory conduct and lack of bona fides disentitle a party to equitable relief.

Citing N. Mohan, the Court remarked:

“Where the defendant has adopted dilatory tactics or where there is lack of bona fide in pursuing remedy… delay need not be condoned.”

Accordingly, it held that the cited decisions were fact-specific and offered no assistance to the petitioners' case.

Review Jurisdiction Not a Substitute for Appeal

The Court firmly reiterated the narrow confines of review jurisdiction under Order XLVII Rule 1 CPC:

“Review is not an appeal in disguise. The power of review is meant to correct errors apparent on the face of the record, not to re-argue or reappreciate evidence.”

In the absence of any such error, the Bench refused to entertain the petition.

The High Court, while dismissing the Review Petition No. 46/2025, held that there was no legal or factual basis to disturb its earlier decision refusing to condone nearly seven years' delay in filing an appeal. The petitioners’ lack of diligence, suppression of material orders, and delay-motivated conduct disqualified them from any relief.

“When delay is not condoned, the appeal cannot be examined on merits. Review is not a tool to circumvent limitation or revive a lost opportunity.”

Date of Decision: 23 January 2026