JUDGMENT

PATHAK, J. :— I agree that the appeal must succeed.

2. The real question is whether the Explanation* to R. 13 of O. 9 of the Civil P. C. bars the appeal filed by the respondent against the ex parte decree. The Explanation was enacted by the Civil P. C. (Amendment) Act, 1976 with effect from Feb. 1, 1977. Prior to its enactment, a defendant burdened by an ex parte decree could apply to the trial court under R.13 of O. 9 for setting aside the decree. He could also appeal under S. 96 against the decree. The mere filing of the appeal did not take away the jurisdiction of the trial court to entertain and dispose of the application for setting aside the ex parte decree. It was where the appeal was disposed of, and the appellate decree superseded the trial court decree by reversing, confirming or varying it that the trial court could not proceed to set aside its ex parte decree. For the trial court decree was said to have merged with the appellate decree. There are of course cases where the trial court decree does not merge with the appellate decree. Such instances arise when the appeal is dismissed in default, or where it is dismissed as having abated by reason of the omission of