P JAGANNATH REDDY Vs. G VIJAYA

JUDGEMENT

(1.) .Heard. By the impugned decree, the lower appellate Court dismissed the appeal as not maintainable on the ground that two applications filed by the appellants herein under Order IX, Rule 13 CPC for setting aside the ex parte decree and another application for condonation of delay were rejected by the trial Court. Against the order of such rejection, the matter was taken to this Court. In this view of the matter, when the appellants have already exhausted the remedy under Order IX Rule 13 CPC, they could not maintain the appeal.

(2.) . The learned Counsel for the appellants strenuously contended that the remedy to file an application under Order IX Rule 13 CPC and the remedy by way of an appeal under Section 96 (2) CPC are concurrent remedies and an appeal against the original ex parte decree can be preferred notwithstanding that the application under Order IX Rule 13 CPC read with Section 5 of the Limitation Act has been rejected. The learned Counsel for the appellants further submitted that the Court below is in error in relying upon a Division Bench judgment of this Court in Munassar Bin vs. Fatima Begum. He further submitted that according to the latest judgment of this Court reported in Ch. Prabhakar vs. Ch. Sadanandam notwithstanding dismissal of petition under Order IX Rule 13 CPC, the appellant can file an appeal under Section 96(2) CPC. On the other hand, the learned Counsel appearing for the respondent contended that having exhausted one remedy under Order IX Rule 13 CPC, the appellants could not have fallen back on the appeal provisions under Section 96 (2) CPC. He relied upon the judgment referred to 1 cited supra and also on a judgment of the learned single Judge of this Court in Mohd. Iqbal vs. K. Jagadeshwar Rao. He submitted that these remedies are concurrent but the appellants have to selec one of those remedies and having selected the remedy under Order IX Rule 13 CPC, the appellants could not have preferred an appeal under Section 96(2) CPC. He also relied upon a judgment of the Supreme Court in Rani Choudhury vs. Sum] Jit Choudhury, in support of his contention.

(3.) A similar question did come up before this Court on an earlier occasion in Mohd. Iqbal vs. K. Jagadeshzwar Rao (supra). In that judgment, the learned single Judge of this Court held that a person aggrieved by an ex parte decree has the following four remedies: