Hon’ble Prakash Krishna, J.—This is a plaintiff’s writ petition. He has instituted original suit No. 646 of 1996 against the respondents herein for cancellation of sale-deeds dated 9th of July, 1992 and 24th of October, 1996. The defendants filed their joint written statement but failed to appear subsequently and the trial Court passed an order on 12th of July, 2004 directing the suit to proceed ex parte. An application to recall the said order was rejected by the trial Court on 29th of July, 2004. The suit was ultimately decreed ex parte on 19th of May, 2007. The defendants filed an application dated 31st of May, 2007 under Order 9 Rule 13 C.P.C for setting aside the ex parte decree dated 19th of May, 2007. The said application is still pending consideration before the trial Court although objection has been preferred by the petitioner on 2nd of April, 2008. Shortly thereafter, the defendants applied for amendment in the restoration application giving rise to the present writ petition. The said amendment application has been allowed on 23.1.2010 by the trial Court and the order of the trial Court has been confirmed by the revisional Court on 12th of October, 2011.

2. Challenging the aforestated two orders one dated 23.1.2010 and another dated 12th of October, 2011, the present writ petition has been preferred.

3. Heard Sri B.B. Paul alongwith Sri A.P. Paul, learned counsel for the petitioner and Sri Rajesh Kumar Chauhan who has filed caveat for the respondents.

4. The learned counsel for the petitioner submits that the application under Order 9 Rule 13 C.P.C is not maintainable in view of the fact that the order to proceed ex parte was challenged unsuccessfully before this Court in writ petition No. 33965 of 2004. The said writ petition was rejected by this Court on 30th of October, 2006. Secondly, amendment in the restoration application amounts to setting up of a new case and therefore, the Courts below were not justified in permitting the amendment in the application to set aside the ex parte decree. The learned counsel for the caveator, on the other hand, supports the impugned orders.

5. Considered the respective submissions of the learned counsel for the parties and perused the record.

6. Although the Court was not inclined to adjudicate the first point as the matter is still pending for consideration before the Courts below but on the insistence of learned counsel for the petitioner the Court is left with no option but to record its finding.

7. Taking the first point first, it may be noted that the writ petition was dismissed by this Court in view of the Apex Court judgment in the case of Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, wherein it has been laid down that where hearing is concluded and the case is adjourned merely for the purpose of pronouncing the judgment, the Order 9 Rule 7 C.P.C would have no application. The said writ petition was filed against the order dated 29th of July, 2004 whereby a date for delivery of judgment was fixed as the ex parte hearing was concluded on 22nd of July, 2004.

8. Submission of the learned counsel for the petitioner that the judgment delivered by this Court in the aforestated writ petition bars the remedy of the defendants to file the application under Order 9 Rule 13 C.P.C has no substance. The remedy to file an application to set aside the ex parte decree has been provided for under Order 9 Rule 13 C.P.C. Occasion for filing an application under the aforestated section would arise only when the ex parte decree has been passed, as the present case is. A close reading of the judgment of the Apex Court in the case of Arjun Singh (supra) would show that in that very case similar argument was advanced which was not accepted and the Supreme Court by its ultimate paragraph-23 remanded the matter back to consider the application under Order 9 Rule 13 C.P.C for setting the ex parte decree. Paragraphs-15 and 16 of the judgment of Apex Court in the case of Arjun Singh (supra