IMPORTANT POINT
An appeal against an order allowing the setting aside of an ex-parte decree is not maintainable under the Code of Civil Procedure.

JUDGMENT :

(Per Ravi Nath Tilhari, J)

Heard Sri Bhanuvarma, learned counsel representing Sri Y.V.Ravi Prasad, learned counsel for the appellant and Sri V.L.N.G.K.Murthy, learned counsel for the respondents.

2. This appeal is filed by the plaintiff.

3. The plaintiff’s O.S.No.29 of 1983 was decreed ex-parte against the defendants/respondents. They filed the application I.A.No.242 of 2006 for setting aside the ex-parte decree under Order 9 Rule 13 of Code of Civil Procedure, 1976 (in short “CPC”). The said application has been allowed and ex-parte decree has been set - aside by an order dated 16.07.2007.

4. Challenging the order dated 16.07.2007, this appeal has been filed under Order 43 Rule 1 CPC.

5. Section 104 CPC reads as under:-

Appeals from orders

104. Orders from which appeal lies:- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders,-

(a) to (f) [xxx].

[(ff) an order under Section 35A;]

[(ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;

(g) an order under Section 95;

(h) an order under any of the provisions or this code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules:

[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]

(2) No appeal shall lie from any order passed in appeal under this section.

6. Order 43 Rule 1 CPC reads as under:

1. Appeals from orders:— An appeal shall lie from the following orders under the provisions of Section 104, namely:--

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in Rule 10-A of Order VII has been followed];

(b)[xxx] ;

(c) an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit ;

(d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte ;

(e) [x x x] ;

(f) an order under rule 21 of Order XI ;

(g) [x x x] ;

(h) [x x x]

(i) an order under Rule 34 of Order XXI on an objection to the draft of a document or of an endorsement ;

(j) an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale

[(ja) an order rejecting an application made under sub-rule (1) of Rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of Rule 105 of that Order is appealable];

(k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit ;

(l) an order under Rule 10 of Order XXII giving or refusing to give leave;

(m) [x x x];

(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

[(na) an order under Rule 5 or Rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]

(o) [x x x]

(p) orders in interpleader-suits under Rule 3, rule 4 or Rule 6 of Order XXXV ;

(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVII;

(r) an order under Rule 1, Rule 2, [Rule 2-A], Rule 4 or Rule 10 of Order XXXIX ;

(s) an order under Rule 1 or Rule 4 of Order XL ;

(t) an order of refusal under Rule 19 of Order XLI to re-admit, or under Rule 21 of Order XLI to re-hear, an appeal ;

(u) an order under Rule 23 [or Rule 23-A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

(v) [x x x]

(w) an order under Rule 4 of Order XLVII granting an application for review. thereupon any judgm