AIR 2015 (NOC) 197 (BOM.) ::2014 (6) ABR 446

Bombay High Court

Hon'ble Judge(s): R. P. Sondurbaldota , J

(A) Civil Procedure Code (5 of 1908) O. 9, R. 13, S. 96— Limitation Act (36 of 1963), S 5 — Appeal — Against ex parte decree — Condonation of delay — Sufficient cause — Defendant suffering ex parte decree filing application under O 9, R 13 for setting aside ex parte decree — After dismissal of said application defendant filing appeal against ex parte decree — The two reme-dies provided against ex parte decree are provided as simultaneous and cannot be converted into consecutive remedies — Proceedings taken out under O 9, R 13 would not constitute sufficient cause within meaning of S 5 of Limitation Act AIR 1938 Bom 459, Referred {" There is no legal impediment in filing appeal against ex parte decree after filing application for setting aside ex parte decree. Though the remedies are concurrent, their scope is entirely different. In an application under Order 9, Rule 13, CPC, all that the Court has to see is, whether the summons in the suit was duly served or whether the defendant was prevented from appearing before Court by sufficient cause. If the Court is satisfied on either count, it may set aside the ex parte decree and restore the suit to it' ™s original position. But in an appeal under Section 96, CPC, the appellate Court has wider jurisdiction to go into the merits of the decree. Therefore, it is for the concerned defendant to elect his remedy. The election would depend upon the facts available to a....