Jain. J.--1. This revision under section 115 of the C.P.C. is directed against the order dated 22.1.1998, passed by Civil Judge, Class-II, Manavar, in Misc. Civil Case No. 8/97, thereby allowing the application filed by respondents No.1 Bhagwan and No.2 Mukesh, under order 9 Rule 13 CPC and setting-aside the decree passed ex parte against them in Civil suit No. 56-A/92.

2. The suit in which the decree in question was passed was filed by respondents No. 1 to 3 against the applicant Laliya and other respondents No.4 to II. The applicant Laliya has set up a counter claim in the said suit. The suit of the respondents No. 1 to 3 was dismissed in default of their appearance. However, the counter claim of the applicant-defendant was decreed ex parte against the respondent No. 1 to 3 vide Judgment and Decree dated 30th November, 95. Against this decree an appeal was filed by three persons namely Smt. Pushpa, Ravi and Ritesh claiming to have purchased the property in suit from the respondents No. 1 to 3, during the pendency of the said suit. Their appeal was, however, dismissed by the District Court at the very thresh-hold on the ground that the appeal at their instance is not maintainable. Against this Judgment of the District Judge, a second appeal (S.A. No. 319/96) filed by the said transferees is pending before this Court.

3. Before filing of the said appeal the respondents No. 1 to 3 had made application under Order 9 Rule 13 CPC for setting-aside the said ex parte decree - on the ground that the summons of the counter claim were not duly served on them. The application was-resisted by the applicant/decree holder. The Court below by its order impugned allowed the application in part and set aside the ex parte decree in so far as it related to the respondents No.1 & 2 only. The prayer of respondent No.3 for setting aside the decree was, however, rejected.

4. I have heard Shri Umesh Maheshwari, learned counsel for the applicant and Shri B.L. Pavecha appearing with Shri Yogesh Mittal for the respondents No. 1 & 2. None has, however, appeared for other respondents.

5. The main contention of the learned counsel for the applicant is that the appeal filed against the said ex parte decree having been dismissed, no application under Order 9 Rule 13 lies, in view of the expressed bar contained under the Explanation to Rule 13. He has placed reliance on a Supreme Court decision in Rani Chaudhari (AIR 1982 SC 1397).

As against it, Shri Pavecha, learned Senior Counsel appearing for respondents No. 1 & 2 contended that the appeal envisaged in the said Explanation is the appeal which has been filed by a defendant against whom an ex parte decree has been passed and who is entitled to make an application under Rule 13. According to him the bar contained in the Explanation would operate only when the appeal is filed by the person making application under rule 13. I feel inclined to accept the contention of Shri Pavecha.

6. Rule 13 reads as follows:

"13. Setting aside decree ex parte against defendant -- in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree, as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided. . . . . . . . . . . . . . . . . . . . .. also:

Provided . . . . . . . . . . . . . . . . . . .. claim.

Explanation. -- Where there has been an appeal against a decree passed ex party under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.

7. Explanation to Rule