AIR 2003 BOMBAY 52 ::(2003) 1 MahLR 218 ::2003 (3) Bom LR 791 ::(2003) 1 AllMR 42 (BOM) ::2003 (2) BomCR 627 ::2003 Bom LR 3 791

Bombay High Court

Hon'ble Judge(s): A. M. Khanwilkar , J

(A) Civil P.C. (5 of 1908) , S.96(2), O.9 R.13— Ex parte decree - Appeal against - Filed after dismissal of application under O. 9, R. 13 for setting aside ex parte decree - Is maintainable. AIR 1989 Madh Pra 224, Dissented from. It is well settled that defendants can take recourse to three different remedies, viz., (i) by way of application under Order 9, Rule 13 for setting aside the ex parte decree; (ii) by way of appeal against the ex parte decree under Section 96(2) of Civil Procedure Code and (iii) also by way of review before the same Court against the ex parte decree. In any case, it is well settled that concurrent remedy in the form of application under Order 9, Rule 13 as well as appeal under Section 96(2) of the Code against the ex parte decree is available to the defendant. However, the remedy under Order 9, Rule 13 is subject to the limitation that it cannot be perused once the appeal preferred by the defendant against the same decree is dismissed, except when it is withdrawn. But, no such limitation would apply to an appeal under Section 96(2) of C.P.C. even if the application under Order 9, Rule 13 was rejected. In the latter case the remedy is a substantive remedy provided against the ex parte decree under Section 96(2) of C.P.C. which can be perused regardless of whether application for setting aside the ex parte decree under ....