KAUSALYBAI KESHAV DUSHINGE Vs. REVUBAI DAJI JARE

JUDGEMENT

(1.) 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 ex parte 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.