JUDGMENT :

VINAY JOSHI, J.

1. This second appeal arises out of the order dated 09.12.2009 in Miscellaneous Civil Application No. 201/2000 passed by the learned Principal District Judge, Amravati, by which the delay caused in filing regular civil appeal challenging the judgment and decree dated 04.09.1998 passed in R.C.S. No. 140/1997 is came to be rejected. This Court has admitted the appeal vide order dated 10.03.2010 by framing substantial questions of law.

2. Heard both sides exhaustively on the appeal and perused necessary documents. It would be apposite on my part to recapitulate the brief history for the purpose of quick appreciation. Initially, respondent had filed Regular Civil Suit No. 140/2007 in the Court of Joint Civil Judge, Junior Division, Chandur Railway for specific performance of contract. The said suit was came to be decreed ex-parte vide judgment and order dated 04.09.1998. Consequently, the execution proceeding was filed to execute ex-parte decree. During the pendency of execution proceeding, the appellant (original defendant) has preferred an application under the provisions of Order IX Rule 13 of the Code of Civil Procedure for setting aside ex-parte decree.

3. Since there happened to be delay in preferring said application, it was accompanied with application for condonation of delay which was came to be rejected by learned trial Court. Rejection of delay condonation application was challenged by appellant/defendant in Writ Petition No. 312/2004 which was allowed by this Court vide order dated 27.04.2004. In consequence, the proceedings under Order IX Rule 13 of the Code of Civil Procedure was heard on merit and was came to be rejected by the trial Court vide order dated 29.08.2008. The appellant had challenged the said order in M.C.A. No. 47/2008, but could not succeed.

4. The second limb of litigation is in the shape of first appeal filed by the appellant/defendant in terms of Section 96 of the Code of Civil Procedure challenging the ex-parte decree on merit. Said appeal was obviously accompanied with delay condonation application since there happened to be delay of few years in preferring appeal. The learned Principal District Judge, Amravati has rejected delay condonation application M.C.A. No. 201/2000 vide impugned order which is subject matter of challenge in this second appeal.

5. The appellant has come up with specific case that the scope of application under Order IX Rule 13 of the Code of Civil Procedure and first appeal under Section 96(2) of the Code of Civil Procedure are entirely different. Both remedies being of different nature, he can resort these remedies one after another since there is no prohibition to that effect. The appellant would contend that the delay of 11 years caused in filing first appeal has occasioned only due to pendency of proceedings under Order IX Rule 13 of the Code of Civil Procedure. According to him, the said reason amounts to a sufficient cause for condonation of delay and therefore, the learned Principal District Judge went wrong in rejecting the delay condonation application.

6. It is urged that the learned Principal District Judge has misread the provisions of law. It is argued that though the appellant has not sought exclusion of time in terms of Section 14 of the Limitation Act, 1963, however the learned Principal District Judge considered the applicability of Section 14 of the Limitation Act and ultimately rejected the delay condonation application.

7. On the other hand, respondent argued that the filing of first appeal challenging the ex-parte decree after rejection of application under Order IX Rule 13 of the Code of Civil Procedure is a calculated move. Though appellant was entitled to resort both remedies simultaneously, he waited till conclusion of the proceedings under Order IX Rule 13 of the Code of Civil Procedure and therefore, in such peculiar facts, delay cannot be condoned. Moreover, it is his submission that the time spent in litigating the proceedin