New Delhi (ABC Live) — The Supreme Court of India, by order dated 04/02/2026 in SLP (C) No. 29260/2019 (N. Rajaram v. R. Murali & Ors.), referred the matter to a Larger Bench only because it noticed an apparent conflict between two earlier Supreme Court judgments, without framing clear or structured questions of law.

At first glance, this looks like a narrow procedural step. However, in substance, the issue is far more important. Indeed, its effect goes well beyond the individual case.

Civil Procedure as the Architecture of Justice

Civil procedure is not just a set of technical rules. Rather, it is the framework through which people get fair hearings, access to justice, and final decisions. When this framework becomes unclear, problems do not stay limited to textbooks. Instead, disputes grow, weak claims increase, property dealings become risky, and courts face heavier burdens. Therefore, a clear procedure is essential.

The Long-Standing Structural Inconsistency

For more than twenty years, Indian civil procedure has faced one central question: whether a person who was not originally made a defendant, but whose rights are affected by an ex-parte decree, can use Order IX Rule 13 of the Code of Civil Procedure, 1908.

On the surface, the issue seems small. In reality, it touches three basic ideas:

• Natural justice – no one should suffer without a chance to be heard.
• Finality of cases – disputes must end at some stage.
• Lis pendens (Section 52, Transfer of Property Act, 1882) – property sold during a case stays subject to the court’s result.

Thus, the problem is not only technical. Instead, it is structural.

Divergent Supreme Court Approaches

Because courts have weighed these ideas differently, two lines of Supreme Court rulings have developed.

On one hand, the liberal view focuses on fairness and allows some affected non-parties to seek the setting aside of ex-parte decrees.

On the other hand, the strict view focuses on discipline and limits Order IX Rule 13 to parties on record, while sending others to different remedies.

Therefore, a real legal divide exists.

Background of the Reference

Against this background, the present reference arises from a conflict between:

• Raj Kumar v. Sardari Lal (2004) 2 SCC 601
• Ram Prakash Agarwal v. Gopi Krishan (2013) 11 SCC 296

At the same time, the Court ordered that the earlier status quo continue.

Importantly, the Court did not decide the merits. Instead, it chose institutional restraint.

Statutory Framework: Order IX Rule 13 CPC

Simply put, Order IX Rule 13 allows a court to set aside an ex-parte decree.

It applies where:

• Summons was not properly served; or

• The defendant had sufficient reason for not appearing.

In effect, the court checks only the reason for absence, not whether the decree is right or wrong.
If allowed, the suit is restored for a fresh hearing.

Why Third-Party Claims Arise

In practice, many property cases involve sales during a pending suit. As a result, buyers or heirs later find that an ex-parte decree exists and try to challenge it.

However, the CPC does not clearly say whether they can use Order IX Rule 13. Therefore, disputes arise.

Lis Pendens Under Section 52 TPA

Under Section 52, any sale during a pending case remains subject to the court’s final decision.

So:

• The buyer steps into the seller’s shoes.
• The buyer gets no better title.
• The decree binds the buyer.

Thus, the law already fixes the buyer’s position.

Are the Two Judgments Truly Equal?

In doctrine, they are not.

First, Raj Kumar deals mainly with persons who claim through the defendant.
Second, Ram Prakash Agarwal speaks more broadly about non-parties.

Yet, lower courts treat them as conflicting. Therefore, the Larger Bench reference followed.

Maintainability Framework

In simple terms:

• Original defendant → Maintainable

• Person claiming through defendant → Check defendant’s sufficient cause

• Stranger → Not maintainable

Harmonisation with Lis Pendens

If courts freely allow third parties to use Order IX Rule 13, Section 52, TPA would lose meaning.
By contrast, a representative-in-interest approach keeps both fairness and finality intact.

Systemic Consequences of Uncertainty

As a result, uncertainty leads to:

• Repeated applications

• More appeals and revisions

• Delay-based litigation

In turn, court backlogs grow.

Delay-Tactics Litigation: How Uncertainty Is Exploited

In practice, procedural uncertainty is not neutral. Instead, it is actively used by litigants who benefit from prolonging disputes.

Property and eviction cases, in particular, involve parties who gain from staying in possession. Therefore, every grey area in the procedure becomes a tool for delay.

When the law remains unclear on whether a third party can invoke Order IX Rule 13:

• Applications are filed even when maintainability is doubtful.
• Trial courts must still hear and decide them.
• Appeals and revisions follow regardless of outcome.

As a result, cases move sideways rather than forward.

Moreover, once a matter is referred to a Larger Bench without framed questions of law, litigants often argue that proceedings should be kept in abeyance because the issue is pending.

Consequently, suits, executions, and appeals are stayed or adjourned for long periods.

This converts a doctrinal reference into a shield for delaying parties.

Importantly, this delay is not accidental. Rather, it is strategic.

A litigant who remains in possession or enjoys a status quo order benefits from every additional month of uncertainty. Therefore, prolonging litigation becomes a business strategy.

Thus, the reference order—while institutionally correct—unintentionally strengthens the culture of delay that burdens Indian courts.

Evaluation of the Reference Order

Strengths

• Follows institutional discipline
• Maintains neutrality

Weaknesses

• No framed questions
• No interim guidance
• No priority listing

Accordingly, the order is sound in form but weak in operation.

Likely Harmonised Rule

Most likely, only a representative-in-interest may use Order IX Rule 13, and only if the defendant had valid grounds.

Conclusion

Formally, the reference is constitutionally proper. Still, it is procedurally incomplete. Because the Court did not frame questions of law or give interim guidance, the order may unintentionally support delay-based tactics and embolden litigants who treat procedural uncertainty as a litigation strategy.

Unless the Larger Bench gives clear direction, the reference risks becoming another source of delay instead of a cure.

Therefore, the Larger Bench must not only settle the legal conflict but also restore procedural certainty in a way that actively discourages delay.

Also, Read ABC Live Report on Lis Pendens