Civil Rev. Appln. No. 609 of 1994

9th October, 1995

Petitioner Counsel: S. R. Bhadgale, V. D. Hon
Respondent Counsel: A. B. Gatne, Kishore S. Bhore

JUDGMENT

JUDGMENT:- Heard parties.

2. This Civil Revision Application raises short question whether an ex parte decree can be challenged by two simultaneous proceedings; one under Order 9, Rule 13 by way of application to the same Court and another by way of Appeal under section 96 of the Code of Civil Procedure.

3. When an exparte decree is passed against the defendant, he has remedies more than one available though the scope of inquiry would be different in different remedies. An ex parte decree may be set aside in an application under Order 9, Rule 13 wherein the applicant-defendant will have to show that there was sufficient cause for his failure to appear when the suit was called for hearing in the Court and in an appeal under section 96 he would be able to challenge the decree on merits. There is nothing in the Civil Procedure Code to bar simultaneous resort to both of them. On the contrary, it appears that from the explanation inserted vide section 59 of the Code of Civil Procedure (Amendment) Act, 1976 (Explanation No. II as per the Bombay Amendment) that both remedies can be resorted to subject to the limitation that if the appeal is disposed of on any ground other than the withdrawal by the appellant, then an application under Order 9, Rule 13 would not be maintainable.

4. The words 'no application shall lie' will have to be interpreted to mean that after the disposal of the appeal otherwise than for withdrawal, no application could be filed as well as application pending shall stand abated. Similar is the position in respect of the appeal also. If an application under Order 9, Rule 13 is filed and the decree is also challenged in Appeal under section 96 and application under Order 9, Rule 13 is allowed and the ex parte decree is set aside, then the appeal automatically abates since there is no decree in existence which is challenged in the appeal. Therefore, both the remedies can be resorted to and if either of them is disposed of or is decided, then it would affect continuance of the other remedy.

5. In the case of Rani Choudhary vs. Lt. Col. Suraj Jit Choudhary, AIR 1982 SC 1397, Supreme Court was pleased to observe :

"He (defendant) could also appeal under section 96 against the decree. The mere filing of the appeal did not take away the jurisdiction of the trial court to entertain and dispose of the application for setting aside the ex parte decree. It was where the appeal was disposed of, and the appellate decree superseded the trial court decree by reversing, confirming or varying it that the trial Court could not proceed to set aside its ex parte decree."

Therefore, it is amply clear that mere filing of the appeal does not take away right of the trial court to hear and decide the application under Order 9, Rule 13. So also, mere filing of the application under Order 9, Rule 13 does not take away appellate Courts' right to hear and decide the appeal.

6. Learned single judge of Nagpur High Court in Pargilal Karansing Judgment debtor vs. Khilawansing and others - Decree-holders Judgment-debtors, 1946 NLJ 349 = AIR (33) 1946 Nagpur 393 had taken the view that the remedies under Order 9, Rule 13 and of appeal are concurrent remedies. Same view was taken by Madras High Court in Palaniappa Chetty vs. Subramaniya Chetty and others, AIR 1921 Mad. 568 and it was held that mere filing of appeal does not take away jurisdiction of the lower Court to entertain application to set aside ex parte decree.

7. In this view of the matter, learned lower appellate Judge was right in rejecting application Exhibit 12 filed by present petitioner praying that the appeal filed by the present respondent be held to be not maintainable. No interference is warranted. Civil Revision Application stands rejected. However, in the circumstances, there be no order as to costs.

Revision application rejected