ORDER

This Civil Revision Petition has been filed as against the fair and final order passed in in I.A.No.11 of 2015 in unnumbered A.S.No.--- of

2015 dated 28.10.2015, on the file of Principal District Court, Dharmapuri, thereby dismissing the petition to condone the delay in filing the Appeal Suit.

2. The petitioner is the second defendant in the suit filed by the first respondent herein for partition. On receipt of the summons in the suit, the petitioner failed to appear before the Trial Court and as such he was set ex-parte. Ex-parte decree was also passed on 04.07.2012. Only on receipt of final decree notice in I.A.No.374 of 2012, the petitioner had knowledge about the ex-parte decree and filed an application to set aside the ex-parte decree along with a condone delay petition in I.A.No.160 of 2013. The petitioner filed a petition to condone the delay of 230 days and to set aside the ex-parte decree dated 04.07.2012 on the ground that after receipt of notice in the suit, the petitioner had gone out of town and as such the petitioner could not appear before the Trial Court. Therefore, he was set ex-parte and an ex-parte decree was passed on 04.07.2012. Further, his counsel also mixed up his bundle with other bundles and as such he could not file a petition to set aside the ex-parte decree within time.

3. The Trial Court dismissed the said application for the reason that already the suit was decreed on merits and the reason stated in the condone delay petition is not a believable one. Aggrieved by the same, the petitioner did not prefer any revision so far. After dismissal of the condone delay petition, he preferred Appeal Suit along with an application to condone delay in filing the appeal in I.A.No.11 of 2015. The said application was filed to condone the delay of 914 days delay in filing the Appeal Suit. The said petition was also dismissed by the Appellate Court. Aggrieved by the same, this present revision petition.

4. The learned counsel for the petitioner would submit that the petitioner has statutory right to file an Appeal Suit and the same cannot be denied by way of dismissing the condone delay petition. Though, the petitioner filed a petition to condone the delay in filing a petition to set aside the ex-parte decree, it is not a bar for the petitioner to file an appeal. He can simultaneously exhaust his remedy. Further, it is not the case that the condone delay petition filed to set aside the ex-parte decree was already dismissed and as such the petitioner failed to explain the delay caused in filing the petition to set aside the ex-parte decree and there is no point in considering the petition to condone the delay in filing an appeal.

5. In support of his contention, he relied upon the Judgment of the Hon'ble Supreme Court of India reported in 2019 6 SCC 387 in the case of Bhivchandra Shankar More Vs. Balu Gangaram More and others, wherein it was held that the scope of Order 9 Rule 13 CPC and Section 96(2) CPC are entirely different. In an application filed under Order 9 Rule 13 CPC, the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any “sufficient cause” from appearing when the suit was called for hearing. If the Court is satisfied that the defendants was not duly served or that he was prevented for “sufficient cause”, the Court may set aside the ex-parte decree and and restore the suit to its original position. In terms of Section 96(2) CPC, the appeal lies from an original decree passed ex-parte. In the regular appeal filed under Section 96(2) CPC, the Appellate Court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order IX Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order IX Rule 13 CPC is dismissed. It was further held that the appeal under Section 96(2) CPC is a statutory rig