Bombay High Court: In a case involving application for recall of an ex parte decree, the Court held that an ex parte decree, on the original side, passed under Order VIII of the Code of Civil Procedure, 1908 stands to be null and can be passed only in a notice of motion which has been filed under Rule 90 of the Original Side Rules.
In the instant case, it was noted by the Bench of G.S. Patel, J. that there had been a delay of 150 days in the Notice of Motion which was unexplained and further went on to observe that there arose a very fundamental reason to recall the decree and this was concerned with the Bombay High Court (Original Side) Rules and in particular Rule 90 which deals with judgment for want of written statement.
The Court relied upon the judgment of the Supreme Court in Iridium India Telecom Ltd. v. Motorola Inc., (2005)2 SCC 145 and the judgment of the Bombay High Court in Nikita Trading v. Nirlon Synthetics Fibres & Chemicals Ltd. (order dated 29.4.2008 in Appeal No. 1136 of 2002) and Tardeo Properties Pvt. Ltd. v. Bank of Baroda, 2007 SCC OnLine Bom 614 in order to uphold that on the original side of this Court, given the extant Rules, a Court cannot exercise jurisdiction under Order VIII of the Code to pass an ex parte decree. That can only be done on a Notice of Motion filed under Rule 90 of the OS Rules, and not otherwise. Therefore, the ex party decree was recalled by the Court. [Gaurang Doshi v. Madhu S. Gupta, Notice of Motion No. 456 of 2015, decided on 14.12.2017]
