An appeal against an ex parte decree remains maintainable regardless of the dismissal of an application to set it aside under Order 9, Rule 13.

1.This appeal taken exception to the judgment and decree passed by the Bombay City Civil Court, Bombay dated 23rd November, 1977 in Suit No. 1020 of 1964. The said suit was filed by the predecessor of the respondents herein against the predecessor of the appellants herein for possession of a strip of land admeasuring 142 sq. yds. or thereabout as described in Exh. A and shown in plant Exh. G bearing Plot No. 596 of Bandra Town Scheme No. 3. In the alternative, it was prayed to determine the area encroached upon by the defendant in the said suit in respect of the said plot by joint measurement taken by and under the directions of the Court as per records of the Town Planning Scheme as declared in the year 1939 and decree be passed against the defendant and in favour of the plaintiff for possession of the strip of land so determined. Further relief of injunction was prayed in the said suit. The premise on which the suit proceeds is that the plaintiff was the owner of the piece of vacant land bearing Plot No. 596 whereas the defendant was the owner in respect of the adjoining piece of land bearing Plot No. 597. The Plot No. 596 owned by the plaintiff was admeasuring 1030 sq. yds. as mentioned in the Conveyance in his favour, whereas the plot owned and possessed by the defendant admeasured only 800 sq. yds. But the defendant encroached upon portion of the plot which was owned and possessed by the plaintiff bearing Plot No. 596. It is not necessary to burden this judgment with how the matter proceeded before the trial Court. Suffice it to point out that both the parties filed consent minutes for appointment of the Commissioner who was to determine the boundaries of final Plot Nos. 596 and 597 of Bandra Town Scheme No. 3 in accordance with the said scheme declared in 1939-40 (and not as per present city survey record), and to determine the area of encroachment on Plot No. 596 if any. Pursuant to the said minutes, Mr. Nanavati B. H., Architect was appointed as Commissioner who has subsequently submitted his report dated 29-4-1977, which was submitted in the Court on 5-7-1977. After the submission of Commissioner's report, the Court proceeded to settle the issues on 11-7-1977. It is relevant to note that earlier on 16-12-1976, the matter was adjourned for recording of evidence to 7-2-1977. However, it is not in dispute that no evidence either oral or on affidavit was adduced on behalf of either party. Be that as it may, on 11-7-1977 the suit was adjourned to 18-7-1977. However on that day, the matter was adjourned to 8-8-1977 with clear understanding that no further date will be given for any reason. The roznama indicates that the suit was thereafter listed on 17-11-1977 when the defendant and his advocate were absent and in the circumstances the case was adjourned at the request of the Advocate for the plaintiff to 21-11-1977, but for final hearing. No doubt the order sheet indicates that on 21-11-1977 once again none appeared for the defendant. In the circumstances, the Court proceeded to place the matter for judgment on 23-11-1977 and once again on that day none appeared for the defendant. Accordingly, on that day i.e. 23-11-1997 the Court pronounced the judgment and decree, which is impugned in the present appeal

2. However, before institution of the present appeal, the appellant filed application on 13-12-1977, under O.9, R.13 of C.P.C., after they came to know about the ex parte decree passed against them. That application was however, dismissed on 9-2-1979 on the ground that no sufficient cause was made out for setting aside