There is no clock on asking to be let back into your own case, a Kerala Full Bench holds

For nineteen years Kerala courts have thrown out applications under Order IX Rule 7 as three years too late. Three judges have now held that no period of limitation applies at all, and that the 2007 decision which started it was wrong.

A defendant misses a hearing. The court proceeds ex parte. Months or years later the defendant turns up, explains the absence and asks to be allowed back in — not to undo a decree, because none has been passed, but to cross-examine the witnesses who were heard while nobody spoke for him. Is that application too late?

In Kerala the answer since 2007 has often been yes, on the footing that Article 137 of the Limitation Act, 1963 gives him three years and no more. On 23 September 2026, in Devaki and Ors. v. Chandrika Ayyappan, a Full Bench of Chief Justice Soumen Sen, Justice Sathish Ninan and Justice Easwaran S. held that reasoning to be wrong. An application under Order IX Rule 7 of the Code of Civil Procedure, 1908 is subject to no period of limitation at all.

How the question reached three judges

The reference came from a single judge, and the route it travelled is itself worth noting. Hearing two civil original petitions in February 2025, the learned single judge found two conflicting lines of authority in the High Court on the limitation for an Order IX Rule 7 application.

In C.L. Cleetus v. The South Indian Bank Ltd. [2007 (3) KHC 911] it had been held that Article 137 applies and that such an application must be brought within three years. A Division Bench followed that in Y. Daniel v. Annama in March 2012 — without, the Full Bench records, independently considering whether Article 137 prescribes any period of limitation for an application of this kind at all.

Ordinarily a single judge is bound by a Division Bench. But where a single judge doubts the correctness of a larger Bench’s view, the proper course, on Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 and Pradip Chandra Parija v. Pramod Chandra Patnaik (2002) 1 SCC 1, is to place the matter before the Chief Justice so that a larger Bench can decide it. That is what happened, and two questions were framed: whether an application under Order IX Rule 7 to set aside an ex parte order is subject to any limitation period, and whether Article 137 applies to it.

The facts that produced the reference are ordinary. The application to set aside the ex parte order had been dismissed as belatedly filed, because it was not accompanied by a petition to condone the delay. The petitioners said no delay needed condoning because no limitation ran. The respondent said Article 137 gave three years.

Rule 7 and Rule 13 are not the same animal

The Full Bench begins where the Supreme Court began in 1955, with the difference in language between the two rules in Order IX.

Rule 13 deals with setting aside an ex parte decree. It says so expressly, requires the defendant to satisfy the court that summons was not duly served or that sufficient cause prevented his appearance, and directs the court to make an order setting the decree aside and appoint a day for proceeding with the suit.

Rule 7 is differently built. Where the court has adjourned the hearing of the suit ex parte, and the defendant at or before such hearing appears and assigns good cause for his previous non-appearance, he may, on such terms as to costs or otherwise as the court directs, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

In Sangram Singh v. Election Tribunal, Kotah (1955) 1 SCC 323, the Supreme Court drew the contrast sharply. Rule 7, it held, does not require the setting aside of what is commonly though erroneously called the ex parte order. No order is contemplated by the Code, and therefore no order setting it aside is contemplated either. A decree is different: it is a command of the court, and can be undone only by another order made and recorded with due formality.

Sangram Singh also settled what Rule 7 does and does not take away. A defendant who did not appear earlier is not shut out from appearing later; the right to proceed ex parte accrues from day to day, and at each adjourned hearing the court is thrown back to Rule 6. What the absent defendant cannot do, unless he shows good cause, is set back the hands of the clock. He must accept what has gone before and proceed from the stage at which he comes in.

That, the Full Bench holds, is the whole function of Rule 7. It is not a remedy against an order. It is a request to be restored to the position the defendant would have occupied had he appeared on the day fixed — and the words “as if he had appeared on the day fixed for his appearance” say exactly that. An order to proceed ex parte under Rule 6 does not, by itself, generate an application to set that order aside in the way an ex parte decree generates one under Rule 13.

What the Supreme Court has and has not decided

The judgment then works through the cases the parties relied on, and the pattern it finds is consistent: the Supreme Court has examined Rule 7 repeatedly and has never fixed a limitation period for it.

In Arjun Singh v. Mohindra Kumar (AIR 1964 SC 993) the question was whether dismissal of a Rule 7 application barred, as res judicata, a later application under Rule 13. The Court classified interlocutory orders into two kinds — those preserving the status quo, and those designed to ensure the just, smooth, orderly and expeditious disposal of the suit. A Rule 7 application was given as an illustration of the second kind. Such orders decide no matter in issue and do not end the litigation; the refusal to let a defendant set the clock back does not attain finality, and can be canvassed in an appeal against the decree. Repeated applications on identical facts may be rejected, but on the ground that no new facts have been shown, not on res judicata.

In Vijay Kumar Madan v. R.N. Gupta Technical Education Society (2002) 5 SCC 30, the Court held that a Rule 7 application is needed only where the defendant wants the proceedings reflected back and reopened from the point at which they went ex parte, converting ex parte hearings into bi-parte ones. It set limits on the terms a court may impose: they cannot leave the defendant worse off than if he had never applied, cannot be so onerous as to decree the suit, and cannot achieve what the court could not have ordered in the suit itself. The purpose of the rule, in essence, is to penalise improper dilatoriness calculated merely to prolong litigation. No limitation period is prescribed.

In Rasiklal Manikchand Dhariwal v. M.S.S. Food Products (2012) 2 SCC 196, the Court dealt at length with Rules 6, 7 and 13 and held that Rule 7 has no application once the hearing has concluded and the matter has been reserved for judgment. Rule 7 presupposes that the suit has been adjourned for hearing, and an adjournment merely to pronounce judgment is not an adjournment of the hearing. There too, limitation was not discussed.

The Full Bench notes the same understanding in the High Courts, running back more than sixty years. In Kunjan v. Kalliani Amma (1960 KLT 1141) it was held, on Sangram Singh, that failure to show good cause does not mean a defendant cannot appear at all — only that he cannot be relegated to the position he would have occupied — and that dismissal of his petition on that footing was wrong. Decisions of the Kerala and Punjab and Haryana High Courts have held that a defendant set ex parte may simply come in and continue from the stage at which he appears, needing no application at all if he is content to be bound by what happened in his absence; he applies under Rule 7 only if he wants to cross-examine witnesses already examined, which is the right the order under Rule 7 gives him. The Madras High Court in Rajasekar v. Govindammal read Sangram Singh as holding plainly that there is no limitation for a Rule 7 petition, because the application is not one to set aside an act of court but one seeking permission to put the clock back.

The argument that settles it: the decree comes later

The most telling reasoning in the judgment is borrowed from the Madras High Court, and it works by looking forward rather than backward.

A defendant set ex parte in 2011 has an unquestioned right to apply under Rule 13 to set aside an ex parte decree passed against him in 2017, provided he applies within thirty days of that decree. Nothing in law prevents it, and Arjun Singh confirms that the earlier rejection of a Rule 7 application does not bar it. But if a Rule 7 application were itself barred by lapse of time — whether three years or thirty days — the consequence would be incoherent. The defendant would be shut out of the lesser remedy while remaining entitled to the greater one, and a timely application to set aside the decree would in substance be barred too. The Supreme Court envisaged precisely that mismatch when it held that rejection under Rule 7 does not operate as res judicata under Rule 13.

The Full Bench also addresses what actually follows from an order under Rule 6, because much of the confusion comes from treating that order as a determination. Despite being set ex parte, a defendant is not precluded from participating in the trial and examining witnesses, including the plaintiff, to the extent of demolishing the plaintiff’s case. An order under Rule 6 does not entitle the plaintiff to a decree; the court must still consider the merits of the claim, and at that stage no issue of moment touching the merits is decided. The order is procedural — a formal record that the defendant did not appear — and the incorporation of the word “order” in the rule made no significant change to that position.

There is a related point on Order VIII Rule 10, which empowers a court to pronounce judgment where a defendant fails to file a written statement. The Bench declines to read a failure to appear on the date fixed as automatically attracting that power, relying on Sudha Devi v. M.P. Narayanan, Shantilal Gulabchand Mutha v. Tata Engineering and Locomotive Co. and Maya Devi v. Lalta Prasad.

Why the residuary article does not fit

Article 137 is the residuary provision of the Limitation Act, corresponding to Article 181 of the old Act, and it is the divergence over its reach that made the reference necessary.

Its reach is wide. It covers not only applications under the Code but petitions, original or otherwise, including those arising under special and local laws, and where no specific article governs an application made in a suit, Article 137 supplies a three-year period.

The difficulty with applying it here is structural rather than textual. Limitation runs against a right to apply. Rule 7 does not create a right to apply for the setting aside of anything; it creates a discretion in the court, exercisable at an adjourned hearing, to let a defendant who shows good cause participate as though he had been there from the start. There is no order to be undone, so there is no accrual from which three years can be counted.

What limits a Rule 7 application, on this reasoning, is not the calendar but the progress of the suit. The application can be made at the appropriate stage of the proceedings, before the hearing of the suit is concluded — which is where Rasiklal Dhariwal bites — and the defendant must still satisfy the requirements of the rule, including showing good cause for his previous non-appearance. A defendant who waits is not protected by the absence of limitation; he is exposed to the court’s view of whether his cause is good, and to terms as to costs.

The contrary view in C.L. Cleetus and the decisions following it, insofar as they hold that Article 137 governs an application under Order IX Rule 7, was held not to lay down the correct legal position.

The answers

The two referred questions were answered in terms: an application under Order IX Rule 7 CPC is not subject to any period of limitation prescribed under the Limitation Act, 1963; and Article 137 of that Act does not apply to such an application.

The intra court reference was disposed of accordingly, and the two original petitions that gave rise to it were directed to be placed before the appropriate Bench as per roster. The Full Bench recorded its appreciation of the assistance given by Adv. Jacob P. Alex, who appeared as amicus curiae.

The practical effect is immediate and one-directional. A defendant who has been set ex parte in a Kerala trial court no longer has to file a condonation petition alongside a Rule 7 application, and no longer risks dismissal on a ground that has nothing to do with whether his absence was excusable. What he must still do is come before the hearing ends, and explain himself.