The main legal point established in the judgment is the availability of concurrent remedies to challenge an exparte decree and the power of the appellate court to question the propriety of the exparte order and remand the case for retrial.

K.P. Balanarayana Marar, J.

1. The questions of law which arise in this second appeal are:

1. In an appeal from an exparte decree can the appellate court consider the reason for the defendant's non appearance at the hearing and determine whether the court below was right in proceeding ex parte?

2. Whether the only question which can be considered in appeal is whether the decree can be sustained on the merits or in other words, whether the evidence on record is sufficient to support the exparte decree?

3. If the appellate court comes to the conclusion that the suit ought not to have been heard exparte has it the power to remand the case for rehearing to the lower court?

2. Defendant in a suit for injunction is the appellant herein. After completion of the evidence on the side of the plaintiff the suit was adjourned for adducing the evidence on the side of the defendant. On the adjourned date counsel for defendant reported no instructions. Defendant also remained absent. The trial court proceeded exparte and decided the suit or merits. A decree for injunction was granted in favour of the plaintiff. On appeal, the Subordinate Judge, Kozhikode concurred with the decision of the trial court and dismissed the appeal. Hence this second appeal which was admitted on the following substantial questions of law formulated in the appeal memorandum.

1. Was the trial court justified in disposing of the case on merits after declaring the defendant exparte since the circumstances of this case doesn't fall under the explanation to R.2 of O.17 of the Code of Civil Procedure inserted by CPC. Amendment Act of 1976?

2. Is the trial court justified in granting injunction without declaration of title?

3. Was the Court justified in granting injunction without identifying the property?

3. Heard counsel on both sides.

4. Three remedies are open to a person to question an exparte decree, viz.(i) an application under R.13 of O.9 CPC.(ii) an appeal under S.96(2) of the Code, and (iii) an application f or review under O.47.

5. Both the remedies No. 1 and No. ii can be prosecuted concurrently so long as a decision is not rendered in either of them. A defendant against whom an exparte decree is passed is at liberty to apply to set aside the exparte decree under R.13 of O.9 or appeal from the decree. He is also entitled to apply for a review of the judgment. In case the application under O.9 R.13 is rejected a remedy by way of appeal is available under O.43 R.(1)(d). A party need not resort to the remedy under R.13 of O.9 and may instead file an appeal under S.96 from the exparte decree itself.

6. When the two remedies are concurrent it is open to the party to resort to either of the remedies or both. The explanation to R.13 of O.9 introduced by the 1976 Amendment suggests that the remedies are concurrent. The explanation is to the effect that where there has been an appeal against a decree passed exparte 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 exparte decree. When the decree is confirmed in appeal or the appeal is otherwise disposed of the court which passed the decree has no power to entertain an application to set aside the exparte decree, the reason being that the decree of the trial court has merged in the decree of the appellate court. In such a case the question of filing an application under O.9 R.13 does not arise, In case such an application had been filed the petition has only to be rejected. Similarly if the petition to set aside exparte order had been allowed the appeal becomes infructuous and the question of hearing the appeal does not arise. There is consensus of judicial opinion that neither the rejection of the application under O.9 R.13 nor the omission to file an appeal against that order is a bar to an appeal from the decree itself. But if the appeal refused on merits the court while conside