The Explanation to O. IX, R. 13 of the CPC does not apply where the appeal against an ex parte decree is incompetent for want of a copy of the decree.

( 1 ) THIS petition under Art. 226 of the Constitution has been filed by Rajiv Lochan Pandey for quashing the ex parte judgment and decree dated May 27, 1986 (Annexure-12 to the writ petition) and judgments and order dated March 7, 1987 and April 29, 1988 (Annexures-15 and 22 to the writ petition ).

( 2 ) THE petitioner was the tenant of a portion of bungalow No. 16, Clive Road, Allahabad. Pt. Gopi Nath Kunjuri the owner was residing in the remaining portion. The petitioner has been paying rent of the bungalow since 1970. After the death of Pt. Gopinath Kunjuru in 1982, Madan Gopal Sharma, respondent No. 1, forcibly occupied the portion, which was in possession of Pt. Gopinath Kunjuru without any right or authority.

( 3 ) THE petitioner filed suit No. 777 of 1983 against the respondents Nos. 1 to 4 for permanent injunction restraining them from dispossessing him from the disputed premises otherwise than in accordance with law. Respondent No. 1 Madan Gopal Sharma also filed suit No. 758 of 1983 against the petitioner for permanent injunction. Respondents Nos. 2 and 3 were impleaded as defendants in the plaint. Petitioner contested the suit and filed written statement in the same.

( 4 ) THE aforesaid two suits were consolidated by an order dated November 19, 1983, and suit No. 759 of 1983 was made leading case. The two suits (suits Nos. 759 of 1983 and 777 of 1983) were transferred to the Court of XI Additional Munsif by the order of the District Judge dated February 1, 1985. The order sheet of the case recites as under :"transfer the case to the Court of XI Additional Munsif, Allahabad vide D. J. s order dated January, 1985 for disposal. " these suits were again transferred on November 12, 1985. The order sheet is as under : ". . . . . transfer to Court of X Additional Munsif vide D. J. s order (transfer order in O. S. No. 777/82 ). " they were again transferred by the District Judge by his order dated February 19, 1986 to the Court of Munsif West) Allahabad. This order is quoted below : ". . . . . . Transfer the case to the Court of Munsif West, Allahabad, vide D. J. s order dated 12-2-86 for disposal. "after the two suits were transferred to the Court of Munsif West, Allahabad, suit No. 777 of 1983 filed by the petitioner was dismissed for default by judgment and decree dated May 27, 1986. By a judgment passed on the same date, the trial Court decreed the suit No. 759 of 1983. Both of these suits were disposed of by a common judgment. Since the petitioner did not have the knowledge of the suits transferred to Munsif West, Allahabad, the petitioner did not appear. In suit No. 759 of 1983 the plaintiff Madan Gopal Sharma filed his affidavit and on the basis of his affidavit the trial Court decreed the suit. The relevant portion of the judgment of the trial Court is quoted below :

( 5 ) AGAINST the dismissal of his suit No. 777 of 1983, the petitioner filed an appeal on September 24, 1986. The memorandum of appeal recites :"appeal u/s. 96, C. P. C. against the judgment and decree dated 7-7-86 (and 27-5-86) passed by Munsif West, Sri Subhodh Kumar dismissing the Suit No. 777/83 of the plaintiff runs on the following amongst other. . . "

( 6 ) COUNTING limitation on the basis of assertion made in paragraph 10 of the memorandum of appeal, that the petitioner came to know about the ex parte decree on August 3, 1986, the Munsarim reported it to be barred by time by 89 days. It was accompanied with an application for stay as well as two affidavits. In one affidavit the petitioner stated "affidavit in support of appeal for within time" this statement was made on the assertion that the petitioner came to know of the decree and the judgment of the trial Court on August 3, 1986. The Munsarim found it to be belated. The appeal was thereafter placed for admission on December 11, 1986. On that date the Court passed the order : -"nobody respondents on behalf of the applicant. However, Sri Vinay Kumar Verma, Advocate, has appear