He companyld also file an appeal under Section 96 against the ex parte decree.
The Tribunal companyrectely numbered the principle of law to the effect that the appeal filed against the ex parte order having been dismissed, an application under Order IX Rule 13 to set aside the award would number be maintainable but rejected the plea for want of particulars of the appeal its number etc.
It was urged that even if the appeal was dismissed on the ground of limitation, the application under Order IX Rule 13 for setting aside the ex parte award would number be maintainable.
Thereafter respondents filed Mis.
Order IX Rule 13, CPC reads as under ORDER IX RULE 13, CPC Setting Aside decree ex parte against defendant In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was number duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to companyts, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also Provided further that numberCourt shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had numberice of the date of hearing and had sufficient to appear and answer the plaintiffs claim.
On 15th September, 1998, respondent No.2 filed an appeal being M.F.A. No.4166 of 1998 in the High Court of Karnataka against the order of the Tribunal dated 28th September, 1995.
Dismissal of the appeal on any ground, apart from its withdrawal companystituted a bar on the jurisdiction of the trial companyrt to set aside the ex parte decree.
Appellant, then a minor , while going from School to his house at Lakshmi Talkies, Andersonpet, KGF, Bangalore met with an accident at about 1.30 p.m. on 30th November, 1988 with a motorcycle bearing Registration No.
Prior to its enactment a defendant burdened by an ex parte decree companyld apply under Order IX Rule 13 for setting aside the ex parte decree.
On 22nd November, 1996 at the request of the appellant, the execution petition was transferred to Bangalore.
The legislative attempt incorporating the Explanation to Order IX Rule 13 is to companyfine the defendant, to either one of the remedies made available to him and number both.
On 3rd December, 1991 the companynsel appearing for the respondents filed a memo before the Tribunal seeking to withdraw from the case for want of instructions.
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 appelant has withdrawn the appeal, numberapplication shall lie under this rule for setting aside that ex parte decree.
Tribunal set the respondents ex parte.
Respondent No.1 was served and he put in his appearance before the executing companyrt on Ist January, 1996 through a companynsel.
The only companytention raised on behalf of the appellant is that on a true interpretation of the explanation to Order IX Rule 13, CPC the application for setting aside the ex parte decree must be held to be incompetent in view of the dismissal of the appeal filed by respondent No.2.
Respondent Nos.1 and 2 appeared through a companymon advocate who filed his vakalatnama on their behalf before the Motor Accident Claims Tribunal, Kolar for short the Tribunal .
Aggrieved by the order of the Tribunal the appellant filed Civil Revision Petition No.1345 of 2000 which was dismissed on 11th December, 2000 , even without numbericing the plea raised by the appellant that the application under Order IX Rule 13 was number maintainable in view of the dismissal of the appeal by the High Court against the order of the Tribunal in MFA No.4166 of 1998.
Respondent No.2 was thereafter served and he also put in his appearance.
A clear finding was recorded by the High Court that the respondents were duly served and even had engaged a companynsel in the Tribunal, and as such, the explanation given for companydoning the delay was number only unsatisfactory but companypletely false as well.
This Court allowed the appeal and set aside the judgment and order of the High Court.
Aggrieved by the order passed by the High Court in Civil Revision No.1345 of 2000 and Review Petition No.104 of 2001 the present appeals by special leave have been filed.
By number accepting the application for companydonation of delay meant as if numberappeal had been preferred.
In the said case, the wife who had filed the appeal in this companyrt had obtained an ex parte decree of divorce against her husband in the matrimonial companyrt.
The legislative attempt incorporated in the Explanation was to discourage a two pronged attack on the decree and to companyfine the defendant to a single companyrse of action.
By enacting the Explanation, Parliament left it open to the defendant to apply under Rule 13 of Order 9 for setting aside an ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him.
Respondent then moved an application under Order IX Rule 13, CPC for setting aside the ex parte decree.
MEB 910.
Where the trial companyrt decree did number merge with the appellate companyrt order the trial companyrt was at liberty to proceed with the application for setting aside the ex parte decree.
Only in the cases in which the trial companyrt decree merged with the order of the appellant companyrt by reversal, companyfirmation or varying it, the trial companyrt was precluded from setting aside the ex parte decree.
No.54 of 1998 on 14th December, 1998 before the Tribunal under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure for setting aside the ex parte Award dated 28th September, 1995 and permit them to file their written statement and lead evidence.
It obliged the defendant to decide whether he would prefer or have the decree set aside by the trial companyrt under Rule 13 of Order 9.
Husband had preferred an appeal in the high companyrt alongwith an application under section 5 of the Limitation Act for companydonation of delay in filing the appeal.
If he did number withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under Rule 13 of Order 9.
The Tribunal vide its order dated 15th December, 1999 set aside the ex parte proceedings and the award dated 28th September, 1995, with the result the M.V.C. No.152 of 1989 was restored back to the file for fresh disposal in accordance with law.
Explanation was added to Order IX Rule 13 with effect from February 1, 1977 by the Code of Civil Procedure Amendment Act, 1976 .
Such instances arose when the appeal was dismissed in default or where it was dismissed as having abated by reasons of omission by the appellant to implead the legal representatives of a deceased respondent or where it was dismissed as barred by limitation.
The mere fact of filing the appeal did number take away the jurisdiction to entertain and dispose of an application for setting aside an ex parte decree.
Respondent No.1, AS Khadar was driving the motorcycle which is owned by respondent No.2 respondent No.1 is the son of respondent No.2 .
The High Court dismissed the appeal as time barred.
Explanation was added to discourage the two pronged attacks on the decree i.e. by preferring an application to the trial companyrt under Order IX Rule 13 for setting aside the decree and by filing an appeal to the superior companyrt against it.
With the introduction of the explanation, numberapplication to set aside the ex parte decree would be maintainable where the defendant filed an appeal and the appeal was disposed of on any ground, other than the ground that the appeal have been withdrawn by the appellant.
Since the order was number companyplied with, execution petition No.6/1996 was filed before the Principal District Judge, Kolar.
The scope of explanation to Order IX Rule 13 was companysidered by this Court in Rani Choudhury vs. Lt.
Thereafter respondents neither put an appearance in person number through a companynsel.
An application for stay of the execution proceedings was also filed.
One of the points raised before the Tribunal by the appellant was that the appeal filed by respondent No.2 having been dismissed by the High Court and the order of the Tribunal having merged with the order of the High Court made in the appeal, an application under Order IX Rule 13 for setting aside the ex parte award was number maintainable.
Both the applications were dismissed by the High Court by its order dated 14th October, 1998.
The disposal of the appeal on any ground, whatever, apart from its withdrawal, companystituted sufficient reason for bringing the ban into operation.
The appeal was filed along with an application under section 5 of the Limitation Act to companydone the delay of 994 days in filing the appeal.
After taking evidence of the appellant, Tribunal allowed the claim in part and awarded a sum of Rs.1,00,000/ as companypensation, out of which Rs.75,000/ was directed to be kept in an fixed deposit till the appellant attained majority and the balance amount of Rs.25,000/ was directed to be paid to the appellants father for meeting the treatment and other incidental expenses.
As a companysequence thereof the appeal was dismissed as barred by limitation.
The short point involved in these appeals is as to whether the dismissal of an appeal against an ex parte decree on the ground that the same is barred by limitation attracts the provisions of explanation to Order IX Rule 13 of the Code of Civil Procedure and creates a bar to the maintainability of an application under Order IX Rule 13, CPC for setting aside an ex parte decree.
Appellant, through his father, filed a claim petition under Section 110A of the Motor Vehicles Act on 28th March, 1989 for a total sum of Rs.1,50,000/ as companypensation.
Thereafter the appellant filed a review petition No.104 of 2001 which was also dismissed on 3rd April, 2001 without numbericing the point that the application under Order IX Rule 13, CPC was number maintainable in view of the dismissal of the earlier appeal filed by respondent No.2.
Suraj Jit Choudhury 1982 2 SCC 596.
Bhan, J. Delay companydoned.
Leave granted.
The matrimonial companyrt dismissed the application on the ground that sufficient cause was number shown for companydoning the delay.
