MUKESH Vs. MEENAKSHI

JUDGEMENT

(1.) THIS revision petition has been preferred against order dated 12.5.1995 passed by the Second Additional Judge to the Court of District Judge, Guna.

(2.) THE facts necessary for the disposal of tee case in brief are that a suit was filed by the respondent against the petitioner which was decreed ex parte. An application purporting to be under O. 9 R. 13 CPC was moved by the revisionist for setting aside the ex parte decree. The learned trial Court vide its order dated 3.1.95 rejected the application. The revisionist preferred an appeal before the Second A.D.J. Ashoknagar, purporting to be u/s. 96 CPC against judgment and decree dated 8.10.92 passed inasuit No. 4/A/91 and the order dated 3.1.95 passed in M.C.C. No. 492. An application purporting to be u/s. 5, Limitation Act was also made for condonation of delay. The learned lower Court by the impugned order considered the application u/s. 5 of the Limitation Act and also made observations about the application for setting aside the exparte order but finally rejected the appeal holding that it was barred by time. Feeling aggrieved this revision petition has been preferred by the defendant. 1994 JLJ 110 (Naraindas v. Bhagwandas). 4. The learned counsel for the respondent contended that the petitioner had availed of opportunity and had filed a consolidated appeal against the original decree passed exparte as well as against the rejection of application under O. 9 R. 13 CPC. He also moved an application u/s. 5 Limitation Act. The learned trial Court considered the application u/s. 5 and held that there was no sufficient ground. He cannot challenge that order in this revision petition. 1995 (I) MPWN 154 relied upon by the learned counsel for the respondent that where a remedy under O. 9 R. 13 is available, subsequently no such decree can be appealed against. Thus, a careful consideration of the entire law as well as the explanation appended to the provisions of O. 9 R. 13 go to show that the defendant can avail only one remedy available to him. In the present case he availed a remedy of moving an application under O. 9 R. 13. He could not, therefore, file an appeal u/s. 96 CPC against the original exparte decree. It appears to be a legal mistake on the part of the learned counsel who drafted the memo of appeal wherein he challenged the original exparte decree as well as the order passed under O. 9 R. 13 CPC. The learned Court completely ignored the fact that as the defendant had availed an opportunity, available to him under O.9 R. 13, an appeal u/s. 96 CPC was not maintainable. It was, therefore the duty of the learned Court to have considered the appeal against the order rejecting the application under O. 9 R. 13. To me it appears that the learned Court below as well as the learned counsel conducting the case on behalf of the revisionist both were under a wrong notion. It was the duty of the learned Court below to have considered the appeal against the order rejecting the application under O. 9 R. 13 as the appeal against the original ex parte decree was not maintainable. He had no jurisdiction to entertain that appeal. I, therefore, agree with the learned counsel for the revisionist that the learned Court below committed a jurisdictional error in rejecting the appeal as a whole without considering the appeal against the rejection of the application under O. 9 R. 13. The revision petition must, therefore, succeed. . 6. The revision is accordingly allowed and the impugned order is set aside. The learned Court below is directed to dispose of the appeal taking it to be an appeal against the order rejecting the application under O.9 R. 13 after hearing the parties on merits. The order rejecting the appeal as barred by time is of no consequence as the appeal itself was not maintainable against original exparte decree. Costs of this petition shall be borne by the parties under the circumstances of the case. Parties are directed to appear before the learned Court below on 1.12.1995.