K. Govindarajan, J.
1. The 8th defendant having aggrieved by the dismissal of C.M.P.No. 12486/1992 in A.S.S.R. 37889/1992 filed the above appeal.
2. One Jayalakshmi, the 1st respondent filed a suit for partition of her 1/4th share in the suit properties. The said suit was filed on 1.9.1981. The appellant/8th defendant purchased item No. 7 of the suit properties from defendants 1 to 7 on 2.3.1982, pending suit. Since the 8th defendant though filed written statement remained absent, he was set ex parte and a decree was passed granting half share in item Nos. 1 to 8, in the decree dated 26.12.1986. The said decree for half share was granted, though the suit was filed seeking 1/4th share, on the basis of the death of 1st respondent.
3. The 8th defendant filed a petition in I.A.No. 43 of 1987 to set aside the ex parte decree. The same was dismissed on 24.7.1987. An appeal was preferred in C.M.A. 191/1987 challenging the order passed in I.A.No. 43/1987. The same was dismissed. Aggrieved against the same, a revision was filed in C.R.P.No. 703/1992. The learned Judge in the order dated 19.3.1992 dismissed the revision petition, Though the learned counsel tried to submit that certain liberty was given in the said order to file appeal against the decree in O.S.No. 86/1981, we do not find any such observation in the said order.
4. Thereafter, the 8th defendant filed appeal on 22.4.1992 along with petition in C.M.P.No. 12486/1996 to condone the delay in filing the appeal. The learned Judge dismissed the said appeal. Hence the above appeal.
5. Learned counsel for the appellant/8th defendant submitted that the learned Judge is not correct in holding that once the petition under Order 9, Rule 13 of the Code of Civil Procedure is dismissed, the petitioner in the said application cannot challenge the ex parte decree even on merits. According to him, the explanation to Order 9, Rule 13 of the Code prohibits filing application under the said provision while appeal is pending against the decree passed ex parte or the said appeal is disposed of. According to him, in view of the above said explanation, there cannot be any prohibition to file appeal on merits, questioning the correctness of the decree passed ex parte, though the application under Order 9, Rule 13 of the Code was dismissed and confirmed in the appeal and revision. The learned counsel for the respondents submitted that the party cannot have a successive litigation one after another and so the appellant has to confine to any one of the remedies available under the Code.
6. From the above said pleadings and arguments, the point for consideration that arises in the above appeal is:
"Whether the appeal preferred by the appellant before the High Court is maintainable in law, after the dismissal of the application filed under Order 9, Rule 13 of the Code ?"
7. To appreciate the issue raised, the relevant provision, namely, Order 9, Rule 13 of the Code has to be extracted, which runs as follows:
"13. Setting aside decree ex parte against defendant: (1) 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 not 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 costs, 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 no Court 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 notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.
(2) The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to applications under Sub-rule (1).
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, no application shall lie under this rule for setting aside that ex parte decree."
The explanation as extracted above, prohibits filing of an application under Order 9, Rule 13(1) of the Code, if already an appeal is filed against the decree passed ex parte or appeal was disposed of on any ground other than the ground that the appellant has withdrawn the appeal. But, in the present case, the application already filed, under Order 9, Rule 13(1) of the Code, has ended in dismissal. The appeal also met with the same fate. So the question is whether the appeal under Section 96 of the Code is maintainable, questioning the correctness of the finding given in the judgment and decree passed ex parte after disposal of application under Order 9, Rule 13 of the Code, though there is no prohibition under the Code to file appeal under Section 96 of the Code against such a decree.
8. Though the learned counsel for the appellant/8th defendant relied on the Full Bench decision of this Court in Kirshna Aiyar v. Kuppan Ayyangar, I.L.R.30 Mad. 54, the said decision cannot be taken as an answer to the issue raised in this case.
9. Learned counsel for the appellant relied on the decision of the Division Bench in Asethu v. Kesavayya, AIR 1920 Mad. 960. In the said case, an application was filed to set aside an ex parte decree under Order 9, Rule 13 of the Code which was rejected. The Division Bench held that it is not open to the defendant to re-agitate the said question again in the appeal from the decree itself.
10. The same view has been taken in the decisions in Lakshmi Ammal v. Devadasi Nayadu, AIR 1927 Mad. 1114 and in Peer Ammal v. Nalluswami, AIR 1937 Mad. 922. From the above said decisions, it can be inferred that an appeal can be filed questioning the correctness of the decree passed ex parte even after the rejection of the application filed under Order 9, Rule 13 of the Code. But the appellant cannot re-agitate the reason for remaining ex parte and the correctness of the ex parte order passed by the trial Court.
11. While considering the scope of explanation to Order 9, Rule 13 of the Code, the Apex Court in the decision in Rani Choudhury v. Suraj Jit Choudhury, , which is relied on by the learned Judge himself, held as follows:
"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 only if the defendant had opted not to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him. The withdrawal of the appeal was tantamount to effacing it. It obliged the defendant to decide whether he would prefer an adjudication by the appellate Court on the merits of the decree or have the decree set aside by the trial Court under Rule 13 of Order 9. The legislative attempt incorporated in the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant to 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 disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation."
12. Even in P. Kiran Kumar v. A.S. Khadar, , the Apex Court considered the scope of explanation to Order 9, Rule 13 of the Code and held as follows:
"Explanation was added to Order 9, Rule 13 with effect from 1.2.1997 by the Code of Civil Procedure (Amendment) Act, 1976. Prior to its enactment, a defendant burdened by an ex parte decree could apply under Order 9, Rule 13 for setting aside the ex parte decree. He could also file an appeal under Section 96 against the ex parte decree. The mere fact of filing the appeal did not take away the jurisdiction to entertain and dispose of an application for setting aside an ex parte decree. Only in the cases in which the trial Court decree merged with the order of the appellate Court by reversal, confirmation or varying it, the trial Court was precluded from setting aside the ex parte decree. Where the trial Court decree did not merge with the appellate Court order the trial Court was at liberty to proceed with the application for setting aside the ex parte decree. 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. Explanation has added to discourage the two-pronged attacks on the decree i.e., by referring an application to the trial Court under Order 9, Rule 13 for setting aside the decree and by filing an appeal to the superior Court against it. The legislative attempt incorporating the Explanation to Order 9, Rule 13 is to confine the defendant to either one of the remedies made available to him and not both. Dismissal of the appeal on any ground, apart from its withdrawal constituted a bar on the jurisdiction of the trial Court to set aside the ex parte decree. With the introduction of the Explanation, no application 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, than the ground that the appeal had been withdrawn by the appellant."
13. Even in the above said decision, the same view has been reiterated as it has been held in the decision in Rani Choudhury v. Suraj Jit Choudhury, . In both the judgments, the Apex Court has dealt with the scope of Explanation to Order 9, Rule 13 of the Code and the object and reason for introduction of the same. The observation made in the said judgments are only with respect to the Explanation and not with respect to the filing of appeal under Section 96 of the Code after disposal of the application under Order 9, Rule 13 of the Code.
14. Though the learned counsel relied on the Division Bench decision of the Madhya Pradesh High Court in Sumdea v. Madanlal, in support of his submission, we are not inclined to accept the ratio laid down in the said decision, in view of the decisions of our High Court cited earlier.
15. The above said decisions cannot be taken as decisions deciding the scope of explanation as submitted by the learned counsel for the respondents. When the Code has specifically prohibited filing application under Order 9, Rule 13 of the Code only when the appeal is pending or disposed of other than by way of withdrawal, the said provision cannot be construed that it prohibits a party, who failed in his attempt invoking Order 9, Rule 13 of the Code, from challenging the decree passed ex parte on merits. The scope of dealing with application filed under Order 9, Rule 13 of the Code is different from dealing with the appeal filed under Section 96 of the Code. From the above said decisions, it can be taken that prohibition on the party who invokes Order 9, Rule 13 of the Code is only from canvassing the reason for remaining ex parte and also the correctness of the ex parte decree again.
16. Though the explanation introduced to discourage a two-pronged attack on a decree to confine the defendant to a single course of action, the said restriction is only imposed limiting the jurisdiction of the trial Court and it cannot be applied to the jurisdiction of the appellate Court in entertaining the appeal filed under Section 96(2) of the Code. Even in the absence of explanation, the position of law as set out in the said explanation is the same, in view of the fact that after disposal of the appeal filed under Section 96 of the Code on any ground other than its withdrawal, the decree of the trial Court merges with in the appeal decree and the question of setting aside an ex parte decree by the trial Court does not arise. The explanation has been added only to Order 9, Rule 13 of the Code and not to Section 96 of the Code which confers a right on the party to file an appeal even from an ex parte decree which is an independent right given under the Code, it cannot be taken away unless there is a specific bar in filing such appeal. When there is a restriction introduced by way of explanation to Order 9, Rule 13 of the Code, the legislature has not thought of introducing such a restriction under Section 96(2) of the Code either expressly or by necessary implication, since filing of appeal under Section 96(2) of the Code cannot be taken away by bringing the explanation to Order 9, Rule 13 of the Code to Section 96(2) of the Code. In view of the above, we are not able to accept the order passed by the learned single Judge basing on the decision of the Apex Court in Rani Choudhury v. Suraj Jit Choudhury, which is not applicable to the facts of the present case.
17. For the above reasons, the order dated 31.7.2000 passed by the learned Judge is set aside and this Appeal is allowed. Since the Learned Judge has not passed the order on merits, C.M.P.No. 12486/1992 is restored to file and the Registry is directed to list the same for the disposal. No costs.