CHANDRAPALAKA PRABHAKAR Vs. CHANDRAPALKA SADANANDAM

JUDGEMENT

(1.) This Letters Patent Appeal has been filed by the plaintiff in the suit who was successful in obtaining an exparte preliminary decree for partition against the respondent herein, who is hereinafter referred to as the defendant in the suit.

(2.) Aggrieved by the ex parte decree, the defendant in the suit filed an application under Order 9 Rule 13 CPC which was initially allowed subject to certain conditions. Those conditions were not fulfilled by him and therefore, the ex parte decree revived. Consequently, the defendant in the suit again moved an application for setting aside the exparte decree which was dismissed. That order was maintained by this Court in a Civil Revision Petition filed by him. After disposal of the Civil Revision Petition, the defendant in the suit filed an appeal before this Court along with an application under Section 5 of the Limitation Act for condoning the delay in filing the appeal. The application was allowed by the learned single Judge. Being aggrieved the plaintiff in the suit has preferred this Letters Patent Appeal.

(3.) The learned Counsel for the appellant herein first argued that as the defendant had successfully pursued the matter by filing an application under Order 9 Rule 13 CPC for setting aside the ex parte decree he could not challenge the decree by filing an appeal. According to him, a regular appeal under Section 96 and the remedy by way of filing an application under Order 9 Rule 13 CPC are parallel remedies and as one of the remedies was availed, the other remedy was not open. We find no substance in the contention. In an application under Order 9 Rule 13 CPC, what the Court has to see is existence or otherwise of sufficient cause for non-appearance on the date when he was proceeded ex parte by the Court; whereas in an appeal what is required to be seen by the Court is whether the decree impugned is or is not in accordance with law or supportable on the basis of material brought on record. Accordingly, we are of the view that both the remedies are open to the defendant in the suit who suffered an ex parte decree.