Once an appeal is filed against an ex parte decree, the remedy under Order 9 Rule 13 CPC is barred by the proviso to the rule. The appellate court cannot direct the petitioner to avail the remedy of an application under Order 9 Rule 13 CPC. Fresh pleadings or evidence cannot be raised in an appeal against an ex parte decree.

JUDGMENT

Anjani Kumar Mishra, J. - Heard Shri C.B. Gupta, learned counsel for the petitioner and Shri Pramod Kumar Srivastava for the respondent no.4.

2. The instant writ petition arises out of a suit for partition filed by respondent no.4.

A writ of certiorari has been sought quashing the orders dated 24.04.2002 and 13.03.2002 passed by respondent no.1, the Board of Revenue and the order dated 28.01.2002 passed by the Commissioner as also the judgement and preliminary decree of the trial Court dated 22.03.2000.

3. It appears that on the suit being filed, the petitioner, who was the defendant appeared in the suit. Despite last opportunity having been granted to file written statement, he failed to-do-so. Consequently, the trial Court passed an order directing that the suit proceed exparte against him.

4. This order was not subjected to any challenge. Neither was any written statement or evidence filed by the petitioner. Neither could he have done so, after the order to proceed exparte against him attained finality.

5. The trial Court passed a preliminary decree granting half share each to the plaintiff respondent no.4 and the petitioner.

6. Against this order, the petitioner preferred an appeal has been dismissed as has been the consequential second appeal.

7. The contention of counsel for the petitioner is that the Commissioner and the Board of Revenue have dismissed the appeals holding that, in fact, the petitioner should have filed the application under Order 9 Rule 13 C.P.C. instead of filing an appeal.

8. It is contended that two remedies are available against an exparte decree. They are an application under Order 9 Rule 13 or an appeal, challenging the exparte decree. In the instant case, the second option of filing an appeal was exercised by the petitioner. It is not open for the Court to direct that, in fact, the petitioner should file an application under Order 9 Rule 13. Once, the petitioner had opted to avail one of two available remedies, the two Courts below could not have dismissed the on the ground that an application under Order 9 Rule 3 CPC should have been filed. the judgements passed by the Commissioner in first appeal as also the Board of Revenue in the second appeal are liable to be set aside and the matter is liable to be remanded to the first appellate Court to pass a fresh order after hearing the parties on the merits of the appeal.

9. Counsel appearing for the respondent no.4 has supported the impugned order. He has submitted that there is no direction in the orders passed by the appellate Court observing or directing that the petitioner avail the remedy under Order 9 Rule 13 CPC against the exparte decree. He submits that in any case, such a direction would not have been issued in view of the proviso to order 9 Rule 13, which provides that once an exparte decree has been appealed against, and the appeal has not been withdrawn for proceeding under Order 9 Rule 13, the remedy provided to under order 9 Rule 13 C.P.C. is barred.

10. I have considered the submissions made by learned counsel for the parties and perused the impugned orders.

11. Such perusal reveals that the first appellate Court and the second appellate Court have both dismissed the appeals filed by the petitioner on its merits. Therefore, in view of the proviso to order 9 Rule 13 C.P.C., the petitioner cannot invoke the provisions of the said provision because the remedy of an application under Order 9 Rule 13 C.P.C. is now clearly barred by the said proviso. Neither has any direction been issued by the appellate Court, directing the petitioner to avail the remedy of an application under Order 9 Rule 13 CPC.

To that extent, the submissions of counsel for the petitioner are found to be, without substance.

12. At this stage, Shri C.B. Gupta has submitted that since an appeal is a continuation of the suit, the pleas that have been raised in the ground of appeal are liable to be examined. He contends that the plaintiff had no share in the joint property as h