The main legal point established in the judgment is that a regular appeal under Sec. 96 (2) of the Code is maintainable even after the dismissal of an application under Order 9 Rule 13 of the Code.

( 1 ) EXPRESSING doubt about the correctness of the decision rendered in the case of Sumera v. Madanlal, AIR 1989 Madh Pra 224 pertaining to the issue that after the dismissal of an application under O. 9, R. 13 of the Code of Civil Procedure (in short 'the Code') to set aside an ex parte judgment and decree whether an appeal could lie under S. 96 (2) of the Code, assailing the pregnability of the judgment and decree on merits, a Division Bench of this Court thought it apposite that view taken in the case of Sumera (supra) required reconsideration and accordingly sought a reference to a larger Bench. That is how the matter is before us.

( 2 ) THE facts as have been uncurtained are that the plaintiffs/respondents filed a suit for partition of certain properties situated at Napier Town, Jabalpur. The other prayers in the suit included grant of mesne profit and delivery of physical possession. Various grounds were averred for claiming these reliefs. In the suit one Smt. Suchitra Devi was arrayed as defendant No. 1 and during the pendency of the suit she expired. As her legal representatives were already on record as plaintiff and defendant No. 2, her name was deleted and defendants Nos. 2 and 3 were renumbered as defendants No. 1 and 2. The defendant No. 2 resisted the prayer of the plaintiffs and claimed to be the absolute owner of the property.

( 3 ) THE learned trial Judge framed as many as six issues. After it recorded the evidence of the plaintiffs it granted opportunity to the defendants to cross-examine the plaintiffs' witnesses but on the date of hearing as the defendants were not available it proceeded ex parte. Eventually the case was fixed for delivery of judgment. An application was moved on behalf of the defendants under O. 9, R. 7 of the Code but the said application was dismissed by the trial Court. The suit was decreed and the plaintiff was granted the relief. Feeling aggrieved by the same the defendants preferred First Appeal No. 109/81. The plaintiffs/respondents did not file any cross-objection. But the petitioners preferred an application under O. 41, R. 33 of the Code for modification of the decree claiming that he is entitled to 3/4th share of the property. One Bhanu Kumar Jain filed an application to join as a party to the appeal on the ground that he had purchased the property from the respondent No. 1. His application was allowed and he was permitted to file a cross-objection under O. 41, R. 22 of the Code.

( 4 ) IT is worth noting here that after the ex parte judgment and decree were passed the defendant filed an application under Order 9 Rule 13 of the Code for setting aside the same. The application was rejected by order dated 15-1-1986 by the Court of first instance. Feeling aggrieved Misc. Appeal No. 19/86 was carried to the appellate Court which stood dismissed on 5-4-1994 as the Court found that the cause shown was not sufficient for non-appearance of the defendant on the date fixed for hearing. Against the said order Special Leave Petition No. 1193/94 was preferred before the Apex Court which was dismissed as withdrawn. Thus, the matter regarding sufficiency of cause relating to non-appearance was put to rest.

( 5 ) IN course of hearing of the First Appeal the plaintiff raised a preliminary objection before the learned Single Judge that the appeal preferred under Sec. 96 of the Code was not maintainable as the proceedings under Order 9 Rule 13 of the Code had attained finality. Reliance was placed on decision rendered in the cases Smt. Rani Choudhary v. Suraj Jit Choudhary. AIR 1982 SC 1397 and Surmera (supra ). The learned Single Judge followed the view laid down in the case of Sumera (AIR 1989 Madh. Pra 224) (supra) and came to hold that the First Appeal was not maintainable. The other findings recorded by the learned Single Judge need not be adverted to by us.

( 6 ) BEFORE we discuss in detail with regard to relevant provisions and the decisions cited at the Bar, we would like t