ORDER
R. Balia, J.
1. A short but interesting question arises in this revision.
2. An ex parte decree for eviction on the ground of default as well as reasonable requirement of the suit premises by the plaintiff respondents was passed against the petitioner on 14-2-1991 by the Munsif and Judicial Magistrate, Bhilwara. The defendant applied for setting aside the ex parte decree under Order 9, Rule 13, C.P.C. and he also preferred an appeal against the ex parte decree. Appeal against the decree was dismissed by the Civil Judge, Bhilawara on 29-8-1991 as barred by limitation. The petitioner preferred a second appeal before this Court, which was dismissed in the presence of both parties as withdrawn on 3-10-1991 with the following observations:–
“I have heard’the learned counsel for the parties, in view of the fact that the appeal against the order of rejecting application under Order 9, Rule 13, C.P.C. is still pending, therefore, any observations made in the impugned judgments will not affect the case of the appellant on merits in those proceedings.”
While, the aforesaid proceedings were going on, the trial Court rejected the application
under Order 9, Rule 13 on 26-9-1991. The
appeal against the said order which was pending at the time of disposal of second appeal has been dismissed by the impugned order dated 2nd Nov. 1993 by holding that in view of Explanation attached to Rule 9 of Order 13, C.P.C. w.e.f. 1-4-1977 by the Civil Procedure Code (Amendment) Act, 1976, the application is not maintainable because the appeal against the ex parte decree has been disposed of by the Civil Judge otherwise than by withdrawal of appeal.
3. Learned counsel, for the petitioner contends that the lower Appellate Court has seriously erred and has acted with material irregularity and illegality in the exercise of its jurisdiction by disposing of the appeal by taking into consideration the decision in appeal’ against the ex parte decree contrary to observations made by this Court in its order dt. 3-10-1991. He contends that the observations made by this Court in its order dated 3-10-1991 were made in the presence of both the parties and is therefore, binding on the parties irrespective of the fact whether they are correct in law or contrary to law.
4. The argument, though, attractive in the first instance does not stand the test on scrutiny. It would be relevant to reproduce the Explanation added to Order 9, Rule 13,
C.P.C. w.e.f. 1-2-1977:–
“(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 has obviously aims at curtailing the duplicity of proceedings in connection with prosecuting remedies against an ex parte decree. The two remedies are available to the persons against whom an ex parte decree has been passed. One is to move an application before the very Court, which has passed the ex parte decree, by disclosing sufficient cause for applicant’s absence on the date of hearing and get the order set aside and restore proceedings to the stage at which the
ex parte order was passed. The other remedy open to the party is to challenge such decree on merit in superior Court and get it set aside on the merits. It is true that ambit and scope of inquiry, the two remedies admit of is quite diffrent in each case but proceedings aimed to obtain same result, that is to get rid of an ex parte decree. As the law existed prior to the insertion of aforesaid Explanation, there wsa divergence of opinion about the utility of continuing with the proceedings under Order 9, Rule 13, C.P.C. after aggrieved party has taken recourse to the alternative of prosecuting remedy of appeal and failed therein, That apart it was also not necessary in which order two proceedings would be decided and decision in one would not necessarily bring end to other proceedings. It is to clear of this anamoly in proceedings with two remedies to bring the same result, but may result it in different results, the legislature intervened and made its intention clear that there a party has chosen to avail remedy of appeal, in that event on disposal of appeal except in the case by withdrawal, the application under Order 9, Rule 13, C.P.C. cannot be proceeded with as the same no more remains maintainable in view of finality of decree.
5. I am fortified in my aforesaid view by a decision of their Lordships of Supreme Court in Rani Choudhary v. Lt. Col. Suraj Jit Choudhary, AIR.1982 SC 1397 wherein the Hon’ble Supreme Court stated the position after amendment as under:–
“By enacting the Explanation, Parliament left it open to the defendant to apply under Rule 13 of Order9 for setting aside an ex parte decree only if thedefendant had opeted 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 application was tenta-mount to effacing it. It obliged the defendant to decide whether he would press 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 decree
to a single course of action. If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed 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.”
6. This was also a case where the first appeal against ex parte decree was dismissed as barred by limitation as in the present case. Thus, in my opinion the decision in the aforesaid case clinches the issue in favour of the decree-holder respondent.
7. Coming to the second contention about the learned counsel about the binding nature of the order passed in the presence of counsel for both the parties, I am of the opinion that those observations does not come in the way of the merit of decision under appeal. The observations were clearly to the effect that the appeal of the appellant against order passed on his application under Order 9, Rule 13 will not be effected merely on the ground that appeal against ex parte decree has been dismissed and the same has been found to be in order by the lower Appellate Court. It is one thing to say that because the lower Appellate Court has found the ex parte decree as sound on merit and therefore, there is no ground to allow the application for setting aside the ex parte decree and it is quite another thing to say that because of statutory provision as a result of decision of appeal on whatever ground except on withdrawal of appeal, the application is not maintainable. While in the former case the order is effected or influenced by the observations made with regard to the validity of decree, in the latter case, its decision on application filed under Order 9, Rule 13, C.P.C. is on its own merit adjudging upon its maintainability in the light of statutory provisions.
8. Thus, in my opinion, decision of the lower Appellate Court that the application of the petitioner under Order 9, Rule 13 no more remains maintainable after appeal against the
ex parte decree has been dismissed on the ground of limitation is an oder passed on the merit of the application under Order 9, Rule 13 uninfluenced by the findings record-ed in the judgment given in appeal. It is giving statutory effect to the disposal of appeal but not deciding the application on the basis of findings recorded in appeal. Therefore, in my opinion no contravention of the observations made by this Court in its order dated 10-4-1991 been made. Accordingly, I find no force in this petition and the same is hereby dismissed.
9. Lastly, learned counsel for the petitioner urges that in peculiar facts and circumstances of the case, he may be granted reasonable time to vacate the said premises. Learned counsel for the respondent has also no objection, if reasonable time is fixed for surrendering the vacant possession of the suit to the plaintiff-respondent so as to obviate the necessity of execution proceedings.
10. In the facts and circumstances of the case, it is directed that the decree for eviction shall not be executed by the plaintiff-decree holder until 31st December, 1994 on the condition that the petitioner-defendant furnishes an undertaking within one month before the Executing Court that he shall surrender the vacant possession of the suit premises on or before 31 st December, 1994 to the decree-holder or any of the his assignee and will not part with possession of the suit premises in any manner in favour of anyone-else. The petitioner-defendant shall further make payment of all arrears of rent as per the decree within a period of two months from today, if not already paid or deposited in the Court and shall further continue to pay the future mesne profits for use and occupation of suit premises by 10th of every succeeding month. Failure in compliance of any of the conditions would enable the decree-holder to put the decree in execution.