POLSANI JAGANNATH REDDY Vs. GURRAM 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 ofthe 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 v. Fatima Begum, AIR 1975 AP 366. He further submitted that according to the latest judgment of this Court reported in Ch. Prabhakar v. Ch. Sadanandam, 1997 (4) ALT 689, 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 (AIR 1975 AP 366) cited supra and also on a judgment of the learned single Judge of this Court in Mohd. Iqbal v. K. Jagadeshwar Rao, 1989 (1) APLJ 345. He submitted that these remedies arc concurrent but the appellants have to select 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 v. Suraj Jit Choudhry, AIR 1982 SC 1397 in support of his contention.

(3.) A similar question did come up before this Court on an earlier occasion in Mohd. Iqbal v. K. Jagadeshwar 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 : "Firstly, it is open to the defendant to make an application under Order 9, Rule 13 or to file an appeal under Section 96(2) or to file a review under Order 47, Rule 1, or an independent suit alleging fraud on the defendant and on the Court."Regarding the question whether one can opt these remedies simultaneously, it was observed as under : "As regards the right of these remedies are concerned, it is always open to the suitor to elect any one of the remedies. It is now well settled by catena of decisions of several High Courts including the Madras High Court and this Court, that simultaneously the procedure under Order 9, Rule 13 and Section 96(2} of the Code can be pursued. But no order could be passed "after orders are passed under either of the provisions.''