An application under Order 9, Rule 13, CPC is not maintainable if the appeal against the ex parte decree has been disposed of on a ground other than withdrawal of appeal.

Rajesh Balia, J.-A short but interesting question arises in this revision.

2. An ex parte decree for eviction on the ground of default as well as reasonable requirement of the suit premises by the plaintiff respondents was passed against the petitioner on 14-2-199 1 by the Munsif and Judicial Magistrate, Bhilwara. The defendant applied for setting aside the ex parte decree under Order 9, Rule 13, CPC and he also preferred an appeal against the ex parte decree. Appeal against the decree was dismissed by the civil Judge, Bhilawara on 29-8-1991 as barred by limitation. The petitioner preferred a second appeal before this Court, which was dismissed in the presence of both parties as withdrawn on 3-10-1991 with the following observations:-“I have heard’ the learned Counsel for the parties, in view of the fact that the appeal against the order of rejecting application under Order 9, Rule 13, CPC is still pending, therefore, any observations made in the impugned judgments will not affect the case of the appellant on merits in those proceedings.” While, the aforesaid proceedings were going on, the trial Court rejected the application under Order 9, Rule 13 on 26-9-1991. The appeal against the said order which was pending at the time of disposal of second appeal has been dismissed by the impugned order dated 2nd No vs. 1993 by holding that in view of Explanation attached to Rule 9 of Order 13, CPC w.e.f 1-4-1977 by the civil Procedure code (Amendment) Act, 1976, the application is not maintainable because the appeal against the ex parte decree has been disposed of by the civil Judge otherwise than by withdrawal of appeal.

3. Learned Counsel, for the petitioner contends that the lower Appellate Court has seriously erred and has acted with material irregularity and illegality in the exercise of its jurisdiction by disposing of the appeal by taking into consideration the decision in appeal’ against the ex parte decree contrary to observations made by this Court in its order dt. 3-10-1991. He contends that the observations made by this Court in its order dated 3-10-1991 were made in the presence of both the parties and is therefore, binding on the parties irrespective of the fact whether they are correct in law or contrary to law.

4. The argument, though, attractive in the first instance does not stand the test on scrutiny. It would be relevant to reproduce the Explanation added to Order 9, Rule 13, CPC w.e.f .1-2-1977:--“(Explanation --Where there has been an appeal against a decree passed ex parte 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 ex parte decree)”. The Explanation has obviously aims at curtailing the duplicity of proceedings in connection with prosecuting remedies against an ex parte decree. The two remedies are available to the persons against whom an ex parte decree has been passed. One is to move an application before the very Court, which has passed the ex parte decree, by disclosing sufficient cause for applicant’s absence on the date of hearing and get the order set aside and restore proceedings to the stage at which the ex parte order was passed. The other remedy open to the party is to challenge such decree on merit in superior Court and get it set aside on the merits. It is true that ambit and scope of inquiry, the two remedies admit of is quite different in each case but proceedings aimed to obtain same result, that is to get rid of an ex parte decree. As the law existed prior to the insertion of aforesaid Explanation, there was divergence of opinion about the utility of continuing with the proceedings under Order 9, Rule 13, CPC after aggrieved party has taken recourse to the alternative of prosecuting remedy of appeal and failed therein, That apart it was also not necessary in which order two proceedings would be decided and decision in one would not neces