H.G.RAMESH, J.

Whether an application presented under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short ‘the Code’) to set aside a decree passed ex parte is maintainable, when an appeal presented against such an ex parte decree, by a party other than the one who applied under Order IX Rule 13 of the Code, has been disposed of prior to disposal of the application under Order IX Rule 13 on a ground other than the ground that the appellant has withdrawn the appeal?

This is the question that requires determination in this appeal. The question is answered in the negative in view of the Explanation to Order IX Rule 13 of the Code.

2. This appeal is preferred by defendant no.4 under Order XLIII Rule 1(d) of the Code and is directed against the order dated 30.01.2014 passed by the trial court namely, the Court of V Additional City Civil Judge, Bangalore (CCH13) dismissing his application in Misc. No.652/2010 filed under Order IX Rule 13 of the Code to set aside the judgment and decree dated 16.7.2010 passed in the suit in O.S.No.3695/1998.

3. I have heard Sri Ashok Haranahalli, learned Senior Counsel appearing for the appellant on the merits of the appeal and perused the impugned order.

4. It is not in dispute that defendant no.1 namely, G.Varadaraj Naik (not the appellant herein) had presented an appeal in RFA No.1509/2010 to this Court against the aforesaid judgment and decree made in O.S.No.3695/1998. This Court by a reasoned judgment dated 16.2.2012 dismissed the appeal and affirmed the judgment and decree of the trial court.

5. The question that requires to be examined in this appeal is as to whether the application in Misc.No.652/2010 filed by the appellant was maintainable in law in view of the Explanation to Order IX Rule 13 of the Code. To examine the question, it is necessary to extract Order IX Rule 13 of the Code, which reads as follows:

“13. Setting aside decree ex parte against defendant. - In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

Explanation.- Where there has been an appeal against a decree passed exparte-under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.”

(Emphasis and underlining supplied)

6. Sri Ashok Haranahalli, learned Senior Counsel appearing for the appellant contended that the Explanation to Order IX Rule 13 of the Code is not applicable to the facts of this case as the appellant had not presented an appeal against the ex parte decree and the aforesaid appeal was presented by some other party. He submitted that the decisions of the Supreme Court in P.Kiran Kumar v. A.S.Khadar [(2002)5 SCC 161] and in Shyam Sundar Sarma v. Pannalal Jaiswal [(2005)1 SCC 436] have no application to the facts of this case as in those cases, the party who applied under Order IX Rule 13 of the Code had presented an appeal against the ex parte decree. According to the learned Senior Counsel, the Explanation wil