The main legal point established in the judgment is that the remedies of appeal and application under 0.9 R.13 are not mutually exclusive, and the applicability of 0.9 R.13 depends on whether the decree is ex parte or on the merits.

1. The short but interesting and informative question for consideration in this civil revision petition filed by the plaintiff is whether an appeal alone will lie or an application under 0.9 R.13 is also maintainable for getting a decree passed under 0.8 R.10, Code of Civil Procedure set aside and the suit restored to file.

2. The suit was filed by the revision petitioner for injunction against the respondents. There was an application for temporary injunction in which an order of interim injunction was issued and notice ordered. Defendants entered appearance and filed objection. They also filed an application for injunction against the plaintiff and produced several documents. Both the applications were disposed of on the merits after elaborate arguments by a detailed order on 7-6-1986. The agreements produced by the plaintiff were challenged as forged documents. Thereafter the case was adjourned for written statement to 30-10-1986. On that day written statement was not filed. Therefore the suit was decreed under 0.8 R.10, without declaring the defendants ex parte, on the sole ground that written statement was not filed. Plaintiff was not examined and no affidavit was also filed by him to prove his contentions. No document was marked. Neither the contentions nor evidence were referred to in the judgment. Suit was simply decreed for the reason that no written statement was filed without even stating what the plaint claim is. Defendants filed an application under 0.9 R.13 the next day itself along with written statement. They said that the written statement signed by the defendants and their advocate was entrusted to a brother Advocate for being filed in court but somehow he omitted to file it. The Munisiff allowed the application and the revision is against that order.

3. I feel that the plaintiff ought not have come in revision against the order. His attempt seems to be to cling on to the ex parte decree, probably being apprehensive of the fact that after contest on the merits he may not be able to succeed. Otherwise in fairness he ought to have submitted to the order and faced a contest, thereby affording the defendants, who keenly fought the injunction application against him, an opportunity to have the case decided on the merits. This is evidently a case in which the court itself should not have resorted to 0.8 R.10.

4. The first contention was that the decree is an appealable one and hence an application under 0.9 R.13 will not lie. That is not a sound proposition of law. These are not remedies which are inconsistent or mutually exclusive. The mere fact that there is right of appeal against the ex parte decree is no reason to hold that an application under 0.9 R.13 is not maintainable. 0.8 R.10 as it stood before the amendment of 1976 did not contain a provision that on pronouncement of the judgment a decree shall be drawn up. The adjudication was therefore taken out of the definition of decree in S.2(2) of the Code and it was made appealable as an order under O.43 R.1(b). After the amendment of 1976 when the provision for drawing up a decree was inserted in O.8 R.10, O.43 R.1(b) was deleted and the decree under O.8 R.10 became no longer appealable as an order under O.43 R.1(b). It became an appealable decree as held in C. D. ltoop v. Trichur Municipality (1984 KLJ 280). The contention is that for this reason it coated to be one against which an application under 0.9 R.13 is maintainable. That contention is on the basis of a misapprehension that remedy under 0.9 R.13 and that by way of appeal are mutually exclusive. In fact they are not. There is no bar in resorting to both the remedies simultaneously or any of them alone. Only thing is that when both remedies are attempted and one succeeds the other becomes infructuous since the object and effect of both is the same. Availability of the remedy by way of appeal is no bar to an application under 0.9 R.13 if such a remedy is also available to the party. For example