RAM NARAIN Vs. GOBIND SINGH

JUDGEMENT

(1.) THIS revision petition has been preferred by the vendee-defendant (hereinafter referred to as the petitioner ). The facts giving rise to the revision petition are as under :-Gobind Singh plaintiff-respondent (hereinafter referred to as the plaintiff filed a suit for possession by way of pre-emption of the land measuring 17 Kanals 6 Marias sold on 13-5-1985, for a sum of Rs. 37,500/ -. The vendee-petitioner was proceeded ex parte and finally an ex parte decree was passed in favour of the plaintiff-respondent and against the vendee-petitioner on 14-6-1987.

(2.) APPELLATE Authority dismissed the appeal being not maintainable and pre-mature on the ground that the vendee-petitioner should have filed an application for setting aside the ex parte order before the Court of original jurisdiction that the appeal was not maintainable as the vendee-petitioner had come to the Court in appeal seeking to set aside the ex parte order on the ground that there was a default, irregularity and error in effecting service on the vendee-petitioner. Aggrieved against the said order, the petitioner has come in revision to this Court.

(3.) LEARNED counsel appearing for the vendee-petitioner has argued that the first appellate Court has acted illegally and without jurisdiction in holding that the appeal filed before the lower appellate Court was not maintainable; that a person against whom an ex parte decree is passed has two remedies open to him, that is either to file an application for setting aside the ex parte decree under Order 9 rule 13 or file an appeal under Section 96 (2) of the Code of Civil Procedure (hereinafter referred to as the Code) and challenge the order of the trial Court on merits of the case; that the vendee-petitioner had challenged the ex parte decree on merits by way of filing an appeal before the District Judge and in view of this, the appeal filed by the vendee-petitioner before the District Judge, could not be dismissed being not maintainable. Section 96 (2) of the Code reads as under :