JUDGMENT - V.C. DAGA, J.:--- Heard learned Counsel for the petitioner. None for the respondent No. 1 inspite of service though respondent No. 1 the only contesting respondent.

2. When the matter was called out for final hearing on 25-1-2001 none appeared for the respondent No. 1. In order to afford a reasonable opportunity to respondent No. 1, though it was not necessary in view of proper service, however this Court by an order dated 25-1-2001 directed the learned Counsel appearing for the petitioner to issue telegraphic notice to respondent No. 1 intimating the next date of hearing.

3. Accordingly, notice was issued by the learned Counsel for the petitioner. He intimated next date of hearing as 31-1-2001. Accordingly , the matter was called out for final hearing on 31-1-2001.

4. Even on 31-1-2001, none appeared for respondent No. 1. Therefore, learned Counsel for the petitioner was again requested to issue fresh notice by Speed Post. Accordingly, 2nd notice was issued to respondent No. 1. An affidavit showing issuance of notice along with acknowledgment evidencing receipt of the said notice are placed on record by the learned Counsel for the petitioner. Inspite of sufficient, proper and reasonable notice, none appeared for the respondent No. 1 today when the matter was called out for final hearing.

5. In the above circumstances, the matter was heard finally without there being any assistance from the respondent No. 1.

6. The learned Counsel for the petitioner contended that on the text of the explanation to Order 9, Rule 13 of the Civil Procedure Code, litigant cannot approach two forums simultaneously. During the course of hearing he furnished list of dates for appreciation of his contentions. The details thereof are as under:"

7. Approach to 1st forum

1. On 11-1-1994- suit was filed.

2. On 30-4-1997- Ex parte decree was passed.

3. On 28-10-1997- The original defendant judgment debtor moved an application under Order 9, Rule 13 of the C.P.C., without there being any application for condonation of delay.

4. The above application was registered as Misc. Civil Application No. 238/97.

5. On 8-10-1998- The aforesaid application was allowed and ex parte decree was set aside.

8. Approach to 2nd forum

(i) In November 1997, the original judgment-debtor filed first appeal challenging ex parte decree dated 30-4-1997 before High Court along with an application for condonation of delay.

(ii) On 8-2-2001 The High Court transferred the above appeal to the District Court at Alibag in view of the amendment to the Bombay Civil Court's Act.

9. On the basis of the aforesaid list of dates, the learned Counsel for the petitioner formulated three grounds of attack to challenge the aforesaid order. They are as under :

(A) Application under Order 9, Rule 13 of the C.P.C. could not have been entertained and tried by the trial Court without there being any application for condonation of delay, since there was a delay of about 6 months in moving the said application for setting aside ex parte decree.

(B) The impugned order, setting aside ex parte decree, suffers from material illegality, irregularity and non-application of mind on the part of the trial Court.

(C) The trial Court could not have proceeded to try an application under Order 9, Rule 13 of the C.P.C. and could not have allowed the same in view of Explanation to Order 9, Rule 13 of the C.P.C, which prohibits such application if the appeal is pending before appellate forum.

10. Taking the last ground first, the Explanation brought on the statute by way of an amendment to C.P.C. viz Amending Act No. 104/1976; Order 9, Rule 13 was amended. The explanation reads as under :

"Where there has been an appeal against a decree passed ex parte 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 that ex parte decree."

The aforesaid explanation prevents the litigant from

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