The remedy under Order 9 Rule 13 of the Code of Civil Procedure does not exclude the remedy by way of appeal, and a mere substantial explanation for the delay in filing an appeal would be sufficient.

1. This is an application for condonation of delay in filing a matrimonial appeal of 197 days. The wife is the applicant before this Court and the decree under appeal is a decree for divorce. It appears that during the continuance of the matrimonial suit, an application Under Section 24 of the Code of Civil Procedure was preferred; on behalf of the wife before the learned District Judge and in connection with the said application, an order for stay of further proceedings was issued by the learned District Judge, limited upto 14.2.97. On the date fixed, the miscellaneous case arising out of the said Section 24 application had stood adjourned; but the records reveal that there was no specific extension of the order of stay. It is the case of the wife before this Court that in view of the earlier order of stay the wife bad an impression that there was no question of final disposal of the matrimonial suit during the pendency of the miscellaneous case. However, because of expiry of the specific time period for which the interim order of stay was operative, the learned Additional District Judge took up the suit for final disposal and disposed of the same by his order, dated 19.3.97, though on the said date, the wife not having been present for her learned Advocate, on argument could be advanced on her behalf. It appears from the record that an application under Order 9 Rule 13 of the Code of Civil Procedure had been preferred thereafter for the purpose of setting aside of the allegedly ex-parte decree and such application, ultimately, proved abortive. The miscellaneous case stood dismissed on the ground that the matrimonial suit bad been disposed of. In the meantime in such a situation the wife claims to have obtained knowledge of the allegedly ex-parte decree on 20.6.97, and thereafter, the miscellaneous case arising out of an application under Order 9 Rule 13 of the Code of Civil Procedure having continued, till its final disposal, no appeal could be preferred. The appeal was preferred actually on 11.11.97, after obtaining the certified copy of the decree under appeal on 17.7.97 in the aforesaid facts and circumstances and also in view of alleged illness of the wife during the interregnum.

2. Mr. Ghosh, appearing on behalf of the husband/respondent, who has married for the second time, bas emphasized the absence of any document In support of the wife's case of illness and has also emphasized very strenuously that since the wife bad preferred to take recourse to Order 9 Rule 13 of the Code of Civil Procedure, the could not claim entitlement to maintain this appeal after dismissal of the said proceeding because that finally clinched the propriety of the decree under appeal.

3. Regarding the ground of challenge to the case of illness, on behalf of the wife, we are of the view that there is a statement on oath, which cannot be said to have been firmly denied or controverted, on behalf of the husband, excepting making of some final end vague statement about the wife being found in good health, by the husband from her movements, about which no particulars could be given. About the legal infirmity based on the result of proceeding Under Order Rule 13 of the C.P.C. as raised by Mr. Ghosh, we do not think that there is much substance In the said contention as it is well-settled that the remedy under the said provisions does not, in any way, exclude the remedy by way of appeal because the criteria for consideration under Order 9 Rule 13 of the C.P.C. are entirely different from those, which are needed to be considered for deciding the propriety of the judgment under appeal. In this context, we also recall the ratio laid down by the Supreme Court in a large number of decisions that the approach, which the Court should take in dealing with an application under Section 5 of the Limitation Act, is that it must be presumed that no appellant likes to get his appeal barred by limitation and it is not necessary for the appellant to explain da