Basheer, J.

1. Appellant who is the defendant in a suit for recovery of money has filed this appeal against the ex parte decree passed against him by the trial court.

2. This case has come up before us on a reference made by a learned single Judge doubting the correctness of the decision rendered by a learned single Judge of this Court in Bava alias Asees v. Madhavan & Ors. ((1995) 2 KLJ 706).

3. In the above decision the learned single Judge took the view that in an appeal against an ex parte decree the appellant is not entitled “to ask the appellate court to accept the appeal on a ground which he could urge in an application under Rule 13 of Order IX and request for remand of the suit for re-hearing”.

4. To put it differently, the learned Judge held that in such instances the appellate court can consider the case only on its merit or on any question of law arising therefrom. The question whether there was sufficient cause for the absence of the appellant before the trial court would be beyond the scope of enquiry by the appellate court. The learned Judge held that the appellant not having chosen to take recourse to the remedy available to him under Rule 13 of Order IX of the Code of Civil Procedure would be precluded from trying to justify the reasons for his absence during trial.

5. In his reference order the learned single Judge has expressed his reservations about the correctness of the above view. The learned Judge has also referred to another decision of this Court in Haridas v. Madhavi Amma (1987 (2) KLT 701) in this context, in which another learned single Judge has laid down that the remedy provided under Order IX Rule 13 and that by way of appeal are not mutually exclusive. It is on the face of the conflicting views in the two decisions referred to above that the learned single Judge has referred this case to a Division Bench.

6. As has been noticed already, appellant was set ex parte in the suit instituted by the respondent herein, as he was absent on the day when the case was taken up for consideration. Accordingly an ex parte decree was passed against the appellant.

7. The case of the appellant is that he came to know about the decree only when he received notice in the execution proceedings. According to him, he had sent the notice received by him from the trial court to his mother and Power of Attorney requesting her to engage a counsel; but the said communication sent by him never reached its destination. It was in the above circumstances that the appellant had filed this appeal under Section 96(2) read with Order XLI Rule 1 of the Code of Civil Procedure.

8. Appellant has stated the reasons for his failure to appear before the trial court in the memorandum of appeal, apart from raising various other contentions touching upon merit of the case. It is not necessary for us to refer to those contentions at this stage. We will revert back to that aspect a little later.

9. There can be no controversy that the defendant who has suffered an ex parte decree has three options before him

(1) He can file an appeal against the ex parte decree under Section 96(2) of the Code.

(2) He can file an application under Order IX Rule 13 of the Code to set aside the ex parte decree.

10. In addition to the above, he can also seek review of the judgment under Order XL VII and may also file a suit to set aside the decree on the ground of fraud etc.

11. It is trite that the remedies available under Order IX Rule 13 and Section 96 are concurrent. The defendant who has suffered an ex parte decree can choose either of the two remedies, or he can have recourse to both proceedings simultaneously. The right given to a suitor under Section 96 of the Code is a statutory and inviolable right. Such a statutory right cannot be taken away if it is not in derogation or contrary to any other statutory provisions. The Code while conferring such a statutory appellate remedy to a suitor has simultaneously provided a procedure to get