No appeal would lie from an order allowing application under Order 9, Rule 13 C.P.C.

P.D.Dinakaran, J.

O.S.A.No.181 of 2003 is directed against the judgment dated 18.11.2002 made in Review Appln.No.5118 of 2001 in Appln.No.3765 of 2001 in C.S.No.331 of 1996, whereas O.S.A.No.110 of 2004 is directed against the judgment dated 10.10.2001 made in Application No.3765 of 2001 in C.S.No.331 of 1996.

2.1. The appellant in these appeals is the plaintiff in C.S.No.331 of 1996 laid for:

(i)declaring that the plaintiff is the owner of the premises, land and building, Old No.14, New No.18, Peria Neikkaran Street, Sowcarpet, Madras-79, by virtue of his having perfected his title by adverse possession; and

(ii) granting a permanent injunction restraining the defendants therein jointly and severally and/or others acting for or through them or anyone of them interfering with and disturbing his peaceful possession and enjoyment of the said property.

2.2. Since the second defendant/respondent herein was set ex parte by a judgment dated 27.3.2000 in the said suit, the second defendant/respondent herein has filed Application No.3765 of 2001 to set aside the said ex parte decree. The learned Single Judge by an order dated 10.10.2001 allowed the said Application No.3765 of 2001 holding as follows:

"This application is seriously opposed. However, having regard to the fact that it is an ex parte decree and the complaint of the applicant is that he had not received notice, it is just and proper that there should be a decision on merits. Consequently, this application stands allowed. However, the applicant is to pay a sum of Rs.2500/- (Rupees two thousand five hundred only) to the counsel for the respondent within a period of four weeks from today as costs."

2.3. As a result, the plaintiff/appellant filed Application No.5118 of 2001 to review the order dated 10.10.2001 made in Application No.3765 of 2001 in C.S.No.331 of 1996 invoking Order 47 Rule 1 of the Code of Civil Procedure (for brevity "the CPC") and the learned Single Judge, by an order dated 18.11.2002 dismissed Application No.5118 of 2001, relevant portion of which reads as follows:

"The present application is taken out to review that order. Mr.M.V.Venkataseshan, learned counsel for the applicant, has relied on a number of judgments, which, in my view, are not necessary to refer to, having regard to the fact that the decree passed was an ex parte decree and the applicant in Application No.3765 of 2001 should have an opportunity to contest the case on merits, I had allowed the application. None of the ingredients necessary for review is present in the instant case. This application is dismissed."

2.4. Aggrieved by the said orders dated 10.10.2001 and 18.11.2002, plaintiff in C.S.No.331 of 1996 has preferred the above appeals in O.S.A.Nos.110 of 2004 and 181 of 2003 respectively.

3.1. Mr.Sampath Kumar, learned senior counsel for the second defendant/respondent, took a preliminary and firm objection as to the maintainability of these appeals.

3.2. According to Mr.Sampath Kumar, learned senior counsel, O.S.A.No.181 of 2003 against the judgment dated 18.11.2002 made in Review Appln.No.5118 of 2001 in Appln.NO.3765 of 2001 in C.S.No.331 of 1996 is not maintainable in law in view of Order 47 Rule 7 read with Order 43 Rule 1(w) and Order 47 Rule 4(2) of the CPC read with Section 104 of the CPC.

3.3. Mr.Sampath Kumar, learned senior counsel for the respondent also contended that O.S.A.No.110 of 2004 against the judgment dated 10.10.2001 made in Appln.No.3765 of 2001 in C.S.No.331 of 1996 setting aside the ex parte decree dated 27.3.2000 is not also maintainable in view of Order 43 Rule 1(d) of the CPC. To substantiate the said contention, the learned counsel placed reliance on the decisions of the Apex Court in (i) GANGA BAI v. VIJAY KUMAR, AIR 1974 SC 1126; and (ii) MITHAILAL DALSANGAR SINGH & OTHERS v. ANNABAI DEVRAM KINI & OTHERS, 2004-2-LW 366.

4. Per contra, Mr.Samir, learned counsel for the plaintiff/appellant, referring to Clause 15 of the Letters Patent, contends that the