1994 Supreme(MP) 821

I. Panduranga Rao, J.
Sumerchand Jain v. Sharadchandra Naik
S.A. No. 205 of 1994 (J); Decided on 29.9.1994*.

Headnote:Civil P.C., 1908 -- O.9 R. 13, O. 17 R. 3 and S. 96 -- remedy under O.9 R. 13 for setting aside the ex parte decree availed of -- subsequently no such decree can be appealed against.

        flfoy izfdz;k lafgrk] 1908 & vk- 9 fu- 13] vk- 17 fu- 3 rFkk /kkjk 96 & vk- 9 fu- 13 ds v/khu ,di{kh; fMdzh vikLr fd, tkus ds mipkj dk ykHk mBk;k x;k & rRikpkr~ ,slh fMdzh ds fo#) vihy ugha dh tk ldrhA

        On 1.2.1993 the case was fixed for the defendants evidence that on the ground that the defendant was absent, the defendant was set ex parte and an eviction decree was passed against him. The learned counsel argued that in view of the State Amendment carried out under Order 17 Rule 3 C.P.C. in the State of Madhya Pradesh, the trial Court has committed an error in treating the case as one falling under Order 17 Rule 3 C.P.C., but should have treated the case as one falling under Order 17 Rule 2 C.P.C., in which case the defendant should have had an opportunity of getting the ex parte decree set aside by filing an application under Order 9 Rule 13 C.P.C.

        Admittedly, the appellant filed an application under Order 9 Rule 13 C.P.C., but it was dismissed on the ground that the case falls under Order 17 Rule 3 C.P.C. and as such the defendant has no right to take recourse to Order 9 Rule 13 C.P.C. for getting the ex parte decree set aside. The appellant challenged that order in M.A. No. 11 of 1993 before the district Judge, which was dismissed on 9.12.1993 holding that Order 9 Rule 13 C.P.C. is not applicable. The learned counsel for the appellant relied upon the decisions of the Supreme Court in AIR 1964 SC 993 (Arjun Singh v. Mohindra Kumar) and AIR1987 SC 42 (Prakash Challder v. Janki Manchanda), and argued that on a proper interpretation, this case comes only under Order 17 Rule 2 CPC and that the said question can be agitated in a regular appeal preferred against the decree.

        The learned counsel for the respondent/landlord on the other hand argued that the appeal itself is not maintainable, inasmuch as, the appellant has already taken recourse under Order 9 Rule 13 C.P.C. and having failed in his attempt to get the decre set aside in those proceedings, he cannot challenge the decree once again in this appeal. In support of his contention, he relied upon AIR 1982 SC 1397 (Rani Choudhary v. SurajJit Choudhary) in which the learned Judges held that when an ex parte decree is passed and an appeal against such decree was disposed of on ground other than withdrawal thereof, the application for setting aside decree under Order 9 Rule 13 C.P.C. is not competent. The learned Judges, while considering the scope of the explanation to Order 9 Rule 13 C.P.C. held that the legislative attempt incorporated in the explanation was to discourage a two-pronged attack on the decree and to confine the defendant to a single course of action.

        Held: Following the above observations of the Supreme Court, a Division Bench of our High Court held in 1989 (I) MPWN 146 = AIR 1989 MP 224 (Sumera v. Madanlal) that where the defendant had already availed of the remedy under Order 9 Rule 1.3 C.P.C., the appeal against the ex parte decree filed by him subsequently is not maintainable. Following the above decision of the Division Bench, I hold that the appellant having already availed the relief contemplated under Order 9 Rule 13 C.P.C. had exhausted the remedy to challenge the ex parte decree and, therefore, the present appeal preferred against the decree is not maintainable. AIR 1964 SC 993 and AIR 1987 SC 42 referred to. 1989 (I) MPWN 146 = AIR 1989 MP 224 relied on.