Introduction:

The case of Deepesh Maheswari and Another v. Renu Maheswari and Others (2026 LiveLaw (SC) 317) presents an important clarification by the Supreme Court on the interplay between appellate remedies under Section 96 of the Code of Civil Procedure, 1908 (CPC) and the remedy for setting aside an ex-parte decree under Order IX Rule 13 CPC. The judgment not only reinforces procedural fairness but also protects the substantive rights of parties, particularly minors, who were excluded from judicial proceedings.

The dispute arose from succession proceedings initiated after the death of Omprakash Maheshwari. The respondents, who were daughters from the deceased’s first marriage, approached the competent court seeking a succession certificate by presenting themselves as the sole legal heirs. Crucially, they failed to disclose the existence of the second wife, Malti Maheswari (Appellant No. 2), and her minor son, Deepesh Maheswari (Appellant No. 1). Despite being aware of their existence, the respondents neither impleaded them as parties nor ensured that a guardian was appointed to represent the minor’s interests. Consequently, the succession certificate was granted ex-parte.

Subsequently, after attaining majority, the son along with his mother challenged the ex-parte decree by filing an application under Order IX Rule 13 CPC seeking to set aside the succession certificate. However, their application was dismissed by the trial court, and the dismissal was affirmed by the first appellate court and later by the High Court in revisional jurisdiction. The primary reasoning was that since the mother had already availed the appellate remedy against the ex-parte decree, the remedy under Order IX Rule 13 CPC stood barred.

Aggrieved by these concurrent findings, the appellants approached the Supreme Court. The core issue before the Court was whether the filing or dismissal of an appeal against an ex-parte decree would preclude a party from invoking the remedy under Order IX Rule 13 CPC, especially in circumstances where a minor’s rights were affected due to non-impleadment.

Arguments of the Appellants (Minor Son and Second Wife):

The appellants vehemently challenged the reasoning adopted by the lower courts and the High Court, contending that the dismissal of their application under Order IX Rule 13 CPC was legally unsustainable and contrary to settled principles of law.

Firstly, it was argued that the remedies under Section 96 CPC and Order IX Rule 13 CPC are fundamentally distinct and operate in separate spheres. While an appeal under Section 96 CPC involves examination of the merits of the decree, an application under Order IX Rule 13 CPC focuses on the procedural irregularities, particularly whether the defendant had sufficient cause for non-appearance. Therefore, the mere filing or dismissal of an appeal cannot bar a party from invoking Order IX Rule 13 CPC.

Secondly, the appellants emphasized that the ex-parte decree was vitiated due to gross procedural irregularities. The minor son, who was a necessary party to the succession proceedings, was not impleaded despite the respondents having full knowledge of his existence. This omission amounted to a denial of natural justice, as the minor was deprived of an opportunity to be heard.

Thirdly, it was argued that the minor, being under a legal disability, could not have participated in the proceedings or responded to public notices. The finding of the lower courts that the minor could have impleaded himself upon publication of notice was described as perverse and legally untenable. The appellants contended that it is the duty of the court and the parties to ensure that a minor’s interests are adequately represented through a guardian.

The appellants further submitted that the mother’s participation in appellate proceedings could not prejudice the independent rights of the minor. The minor’s cause of action arose only upon attaining majority, and he was entitled to challenge the ex-parte decree independently.

Additionally, it was contended that the succession certificate had been obtained by suppression of material facts, as the respondents deliberately failed to disclose the existence of other legal heirs. Such suppression renders the certificate liable to be revoked under Section 383 of the Indian Succession Act.

The appellants also denied any allegation of collusion between the mother and the minor, asserting that their challenge was bona fide and aimed at protecting their rightful share in the estate of the deceased.

Arguments of the Respondents (Daughters from First Marriage):

The respondents, on the other hand, defended the orders of the lower courts and the High Court, contending that the application under Order IX Rule 13 CPC was not maintainable in light of the earlier appellate proceedings.

Firstly, it was argued that the mother (Appellant No. 2) had already availed the remedy of appeal against the ex-parte succession certificate, which had been dismissed. Having elected to pursue the appellate remedy, she could not subsequently invoke Order IX Rule 13 CPC, as this would amount to re-litigation of the same issue and abuse of process of law.

Secondly, the respondents contended that the principle of finality of litigation must be respected. Allowing parties to pursue multiple remedies sequentially would undermine judicial efficiency and certainty. Once the appellate court had adjudicated the matter, the same issues could not be reopened under the guise of an application under Order IX Rule 13 CPC.

Thirdly, it was argued that the appellants had knowledge of the proceedings, as evidenced by the publication of public notice. The respondents contended that the appellants had sufficient opportunity to appear and contest the proceedings but failed to do so. Therefore, the ex-parte decree could not be set aside merely on the ground of non-appearance.

The respondents further submitted that the succession certificate had been granted after due compliance with procedural requirements, and there was no illegality or irregularity warranting interference.

Additionally, it was contended that the delay in challenging the ex-parte decree should disentitle the appellants from relief. The respondents argued that permitting such belated challenges would create uncertainty and prejudice the rights already accrued to them.

Judgment of the Supreme Court:

The Supreme Court, in a well-reasoned judgment authored by Justice Sanjay Karol, decisively rejected the contentions of the respondents and set aside the orders of the lower courts as well as the High Court.

At the outset, the Court reaffirmed the settled legal position that the remedies under Section 96 CPC and Order IX Rule 13 CPC are distinct and independent. It observed that while an appeal under Section 96 CPC involves examination of the correctness of the decree on merits, an application under Order IX Rule 13 CPC provides an opportunity to the defendant to demonstrate sufficient cause for non-appearance and seek setting aside of the ex-parte decree.

The Court emphasized that Order IX Rule 13 CPC confers a wider jurisdiction, enabling the court to consider whether the principles of natural justice have been violated. Therefore, the availability or dismissal of an appeal does not bar the maintainability of an application under Order IX Rule 13 CPC.

In the present case, the Court found that the succession proceedings were fundamentally flawed. The minor son, who was a necessary party, had not been impleaded, and no guardian had been appointed to represent his interests. This omission was held to be a serious procedural irregularity, vitiating the entire proceedings.

The Court categorically rejected the reasoning of the lower courts that the minor could have impleaded himself upon publication of public notice. It held that such a finding was “wholly erroneous and perverse,” as a minor is under a legal disability and incapable of taking such steps in law.

The Court further observed that it is the duty of the parties and the court to ensure that all necessary parties, particularly minors, are properly represented. Failure to do so amounts to a denial of natural justice and renders the proceedings liable to be set aside.

On the issue of suppression of material facts, the Court noted that the respondents were fully aware of the existence of the appellants but deliberately failed to disclose this information. Such suppression was held to be sufficient ground for revocation of the succession certificate under Section 383 of the Indian Succession Act.

The Court also clarified that the dismissal of the appeal filed by the mother did not preclude the appellants from seeking relief under Order IX Rule 13 CPC. It held that the minor’s rights were independent and could not be prejudiced by the actions or omissions of the mother.

Importantly, the Court found no evidence of collusion between the appellants, thereby rejecting the respondents’ allegations.

In light of these findings, the Supreme Court set aside the ex-parte succession certificate and restored the proceedings for fresh adjudication. It directed the concerned court to decide the matter expeditiously, preferably within one year.

The judgment thus reinforces the principle that procedural technicalities cannot override substantive justice, especially in cases involving vulnerable parties such as minors.