JUDGMENT :

Akshaya Kumar Rath, J.

1. Aggrieved by and dissatisfied with the judgment dated 29.1.2005 passed by the learned Addl. District Judge, Jharsuguda in RFA No. 7 of 2003, vide Annexure-2, the petitioner has filed the present petition. By the said order, the learned Addl. District Judge dismissed the appeal and confirmed the ex parte judgment dated 4.3.2003 passed by the learned Civil Judge (Junior Division), Jharsuguda in Money Suit No. 2 of 2002 holding, inter alia, that the same is not maintainable.

2. Opposite party as plaintiff filed a suit for realisation of arrear dues along with pendente lite and future interest at the rate of 12% per annum from the defendant in the court of learned Civil Judge (Junior Division), Jharsuguda, which was registered as Money Suit No. 2 of 2002. The suit was decreed ex parte on 4.3.2003. Against the said judgment and decree, the petitioner-defendant filed an appeal before the learned Addl. District Judge, Jharsuguda, which was registered as RFA No. 7 of 2003. By judgment dated 29.1.2005, the learned Addl. District Judge dismissed the appeal holding, inter alia, that the appellant-petitioner should have first approached the learned lower court under Order IX Rule 13 Civil Procedure Code (hereinafter referred to as "the CPC") and, therefore, the appeal is not maintainable.

3. Heard Mr. Manoranjan Dash, learned counsel for the petitioner and Mr. Saroj Kumar Dash, learned counsel for the opposite party.

4. The sole question that hinges for consideration in this petition is: what is the remedy available to the defendant when the suit is decreed ex parte?

5. The subject-matter of dispute is no more res Integra. In Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993, the apex Court held that when a suit is decree ex parte, Order IX Rule 13 C.P.C. would come in. The defendant can, besides filing an appeal or an application for review, have recourse to an application under Order IX Rule 13 to set aside the ex parte decree. Elucidating further, the apex Court in the case of Bhanu Kumar Jain v. Archana Kumar and another, AIR 2005 SC 626 : 2005 (I) OLR (SC) 470, in paragraphs-26, 36, 37 and 38 of the report, held as follows:

"26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the Trial Court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation I appended to said provision does not suggest that the converse is also true.

xxx xxx xxx

36. ........A right to question the correctness of the decree in a First Appeal is a statutory right. Such a right shall not be curtailed nor any embargo thereupon shall be fixed unless the statute expressly or by necessary implication say so. [See Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. (2004) 5 SCC 385 and Chandravathi P.K. and Others Vs. C.K. Saji and Others, (2004) 3 SCC 734].

37. We have, however, no doubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available thereagainst, viz., to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First Appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law.

38. The dichotomy, in our opinion, can be resolved b