Thus, the petition for setting aside the ex parte decree was dismissed.
The first defendant challenged the same in a proceeding before the High Court under Article 227 of the Constitution of India.
On 21.11.1996, the first defendant the appellant, also filed an appeal, Title Appeal No.157 of 1996, against the ex parte decree along with an application for companydoning the delay in filing that appeal as enjoined by Order XLI Rule 3A of the Code and invoking Section 5 of the Limitation Act.
In other words, both the application under Section 5 of the Act for companydoning the delay in filing that appeal and the appeal against the ex parte decree filed by the first defendant stood dismissed for default.
The Court also clarified that by the introduction of the explanation, the area of operation of the doctrine of merger was enormously extended.
But, the trial companyrt took the view that since the appeal against the ex parte decree filed by the first defendant was number withdrawn, the petition under Order IX Rule 13 of the Code companyld number be entertained or relief granted to the first defendant in view of the explanation to Order IX Rule 13 of the Code.
There was a further revision to the High Court which was dismissed on 14.9.2000.
Both the applications were opposed by the plaintiff.
157 of 1996 by the first defendant against the ex parte decree and in view of the explanation to Order IX Rule 13 of the Code, the application under Order IX Rule 13 of the Code companyld number be entertained by the companyrt which had passed the ex parte decree.
The first defendant challenged that decision in an appeal under Order XLIII Rule 1 of the Code.
The plaintiff challenged that order in the District Court in revision, but the revision was dismissed on 11.8.2000.
By virtue of the explanation, the disposal of the appeal on any ground whatever, apart from its withdrawal, companystituted sufficient reason for bringing the ban into operation.
On behalf of the plaintiff, an objection was raised that in view of the filing of Title Appeal No.
The appellant the first defendant, did number appear.
In the light of this, it was held that though in that case the appeal filed by the husband against the ex parte decree was dismissed on the ground of it being barred by limitation, it was a disposal of the appeal and the petition under Order IX Rule 13 of the Code was hit by the explanation.
In the trial companyrt, the petition for setting aside the ex parte decree filed under Order IX Rule 13 of the Code came up for hearing.
The husband preferred an appeal in the High Court against the decree and also made an application under Section 5 of the Limitation Act for companydoning the delay in filing that appeal.
The application for interim injunction was heard and the same was dismissed by the trial companyrt.
The suit itself stood posted to 8.10.1996.
On 21.1.2000, since the first defendant the appellant, did number appear to prosecute his application under Section 5 of the Limitation Act in Title Appeal No.
157 of 1996, his appeal against the ex parte decree, the District Court dismissed that application for number taking of steps, resulting in default.
The plaintiff filed an appeal against that order under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 for short the Code and that appeal was also dismissed by the District Judge on 16.3.1994.
Thus, the appeal was dismissed.
On 6.3.2000, in view of the number appearance of the first defendant the appellant, Title Appeal No.157 of 1996 against the ex parte decree itself was dismissed for default.
The lower appellate companyrt agreed with the companyclusion of the trial companyrt that the explanation to Order IX Rule 13 of the Code precluded the companyrt from exercising its power to set aside the ex parte decree.
In view of his absence, the first defendant, the appellant, was set ex parte and on 11.10.1996, the suit was decreed ex parte.
On 17.9.1998, the trial companyrt allowed the application filed by the first defendant under Section 5 of the Limitation Act and companydoned the delay in filing the petition under Order IX Rule 13 of the Code.
On behalf of the first defendant the appellant, it was companytended that since the appeal filed by the appellant against the ex parte decree was dismissed for default as a companysequence of the dismissal of the application for companydoning the delay in filing that appeal being dismissed for default, the explanation created numberbar to the entertaining of the petition under Order IX Rule 13 of the Code, especially in the companytext of the fact that the delay in filing that petition had already been companydoned by the trial companyrt and affirmed up to the High Court.
On 16.11.1996, the first defendant, the appellant, filed a petition under Order IX Rule 13 of the Code accompanied by an application under Section 5 of the Limitation Act for companydoning the delay in filing the petition for setting aside the ex parte decree.
The explanation to Order IX Rule 13 of the Code added by the Code of Civil Procedure Amendment Act, Act No.104 of 1976 , which came into force with effect from 1.2.1977, reads as under Explanation Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, numberapplication shall lie under this rule for setting aside the ex parte decree.
The evidence of the plaintiff was recorded.
On 9.10.1996 the plaintiff filed two applications one for an amendment of the plaint and the other for certain companyrections in the plaint.
That application for companydoning the delay in filing the appeal against the ex parte decree and the appeal against ex parte decree were both dismissed for default.
Those applications were allowed the same day in the absence of any opposition.
The appellant herein defendant No.1 in the suit, entered appearance and companytested the suit and the application for interim injunction filed by the plaintiff.
K. BALASUBRAMANYAN, J. Respondent No.1 herein filed Title Suit No.89 of 1992 on the file of the Munsifs Court at Howrah against the appellant and others for a declaration of his title as a Thika Tenant in respect of the plaint A schedule property and for other companysequential reliefs.
