An application under Order 9 Rule 13, C.P.C. for setting aside an ex parte decree is not barred if the appeal against the decree has been disposed of on the ground that the appeal has been withdrawn by the appellant.

V.K.Jhanji, J.

1. This civil revision is directed against order dated 15.9.1995 whereby application filed by the petitioner to set aside ex parte judgment and decree dated 17.5.1993 was dismissed by the trial Court. Challenge is also to order dated 3.9.1997 whereby Appellate Court dismissed the appeal preferred against order dated 15.9.1995.

2. In brief, the facts are that one Mohna Singh was the owner of the property in dispute. He got this property by virtue of Civil Court decree dated 20.12.1973. Before the decree could be executed, Mohna Singh died. Dayal Singh, one of his sons, filed execution application to execute the decree on the basis of will dated 9.11.1976 alleged to have been executed in his favour by his father Mohna Singh. Brother of Dayal Singh, namely, Raman Singh questioned the execution application on the ground that Mohna Singh had not executed will in favour of Dayal Singh. Executing Court, apart from others, on the basis of pleadings, framed issue in regard to execution of Will by Mohna Singh in favour of Dayal Singh. Parties were allowed to lead evidence and on the basis of evidence brought on record, Executing Court vide judgment dated 27.2.1984 held that Will dated 9.11.1976 is shrouded by suspicious circumstances which have not been explained by the propounder. Application filed by Dayal Singh alone was held to be incompetent and was dismissed. Subsequently, on 16.1.1992 Dayai Singh filed suit for possession in regard to the same very land against his brotner and others on the basis of same Will. Suit was decreed ex parte. Chanan Singh, another brother of Dayal Singh, filed an application under Order 9 Rule 13, C.P.C. on 16.7.1993 for setting aside ex parte decree dated 17.5.1993 on the ground that he had not been served in the case and ex parte decree is not binding on him. He, in the application, prayed that the ex parte decree be set aside. Simultaneously, Chanan Singh also filed appeal against ex parte decree along with an application for condonation of delay. Appeal as well as application were dismissed in default on 8.4.1995 by Additional District Judge, Chanan Singh, on the same very day, applied for restoration of appeal. While his application for restoration of appeal was pending, Dayal Singh fifed an application before the Executing Court with whom application under Order 9 Rule 13, C.P.C. was pending, with the prayer that the said application be dismissed in view of explanation contained in application under Order 9 Rule 13, C.P.C. The precise submission of Dayal Singh was that appeal against ex parte decree has been dismissed and, therefore, no application under Order 9 Rule 13, C.P.C. was maintainable for setting aside the decree. Application of Dayal Singh was accepted and resultantly, vide order dated 15.9.1995 application under Order 9 Rule 13, C.P.C. was dismissed. Chanan Singh preferred appeal which too was dismissed by the Additional District Judge. Hence, the present civil revision against orders dated 15.9.1995 and 3.9.1997. Learned counsel appearing on behalf of Chanan Singh (petitioner herein) has contended that vide order dated 3.2.1998, learned Additional District Judge has restored the application for condonation of delay which had been dismissed along with the appeal meaning thereby that order dated 8.4.1995 has been brought to naught. Subsequently, by making a statement on 23.4.1998, Chanan Singh got appeal as well as application dismissed. It is contended that in view of the subsequent event, the ground on which application under Order 9 Rule 13, C.P.C. was moved, no longer survives and, therefore, order; under revision are liable to be set aside.

3. After hearing the learned counsel for the parties, I am of the view that the civil revision deserves to be allowed.

4. The person against whom an ex parte decree is passed, has three remedies to set aside the ex parte decree or order;

(i) he may go in appeal;.

(ii) he may ask for its review; and

(iii) he may seek to se