JUDGMENT
S.W. Puranik, J.
1. Heard Shri Surana, Advocate for the petitioner, and Shri Limaye, Advocate, in person as respondent. The petitioner had filed a suit in the Small Causes Court, Pune, way back in the year 1973 for possession. Unfortunately even after 12 years have elapsed, the petitioner is yet to get the fruits of his decree. There are various averments in this petition made by the decree-holder that the respondent-judgment-debtor has been protracting the litigation one way or the other. This Court is quite concerned with the dilatory tactics adopted by various litigants in the Court. But suffice it to say that the present case does not need any elaboration on that aspect of the case as this matter could be disposed of on the question of tenability of the proceeding under O.9 Rule 13 of the Code of Civil Procedure.
2. The petitioner filed Civil Suit No. 3328 of 1973 before the Judge of the Small Causes Court, Pune on November 23, 1973. It was decreed in his favour on December 15, 1983 after ten years and after several interim orders and remand etc. After the decree was passed, the respondent judgment-debtor filed an application under Order9, Rule 13 of the Code of Civil Procedure fore setting aside the said decree on the ground of it being an ex-parte decree. This proceeding was Misc Civil Application No. 980 of 1983. By order dated April 7, 1984 this application was rejected. The respondent did not challenge this order holding that the decree was not an ex-parte decree. Thereafter the respondent-judgment debtor preferred a regular appeal bearing Civil Appeal No. 133 of 1984 against the original decree passed on December 15, 1983. The said appeal also came to be dismissed by an order of the District Judge on November 15, 1984.
3. The respondent thereafter preferred a writ petition under article 227 of the Constitution of India before the High Court bearing Writ Petition No. 549 of 1985. The said writ petition also was rejected by the Court in limine on February 11, 1985.
4. The respondent judgment-debtor, having availed both the remedies, under Order 9, Rule 13 as well as regular appeal thereafter preferred a Civil Suit No. 433 of 1985 in the Court of Small Causes for declaration, that the decree of 1983 was obtained by the petitioner by fraud and was, therefore, not binding on him. On March 16, 1985 in the said suit the respondent-judgment-debtor obtained an interim stay of the execution of the decree of 1983. On April 26, 1985, however, the Small Causes Court held that it had no jurisdiction to deal with declaratory suits and returned the plaint to the respondent-plaintiff for proceeding to the proper Court. He also vacated the interim stay granted.
5. Thereafter the respondent-judgment debtor preferred Regular Civil Suit No. 935 of 1985 before the Civil Judge and applied for interim injunction against the petitioner-decree-holder from executing the decree of 1983. On July 9, 1985 the injunction application came to be rejected.
6. The respondent thereafter preferred Misc. Civil Appeal No. 295 of 1985 and the same is pending before the appellate Court.
7. After having availed of all these remedies the respondent-judgment debtor, as late as in July, 1985 preferred Misc. Civil Appeal against the order dated April 7, 1984 passed by the trial Judge in the proceedings under Order 9, Rule 13. He also applied for condemnation of delay in presenting the said appeal and also sought for ad interim stay of the execution of the decree. The lower appellate Court while entertaining this appeal and before even condoning the delay in filing of an appeal granted ad interim stay to the execution of the decree as prayed. This ad-interim order was passed on July 30, 1985 and it is this order which is impugned by the original decree-holder in this petition under article 227 of the Constitution of India.
8. Shri S.G. Surana, Advocate, appears for the petitioner-decree-holder while respondent No. 1 is present in person. I have heard both the Counsel at length and with their assistance I have gone through the records and annexures of the writ petition.
9. The decree-holder challenges the impugned order on two grounds. Ground No. 1 is that before the Misc. Civil Appeal is rejected and before the delay is condoned the lower Appellate Court should not have granted the ad interim stay merely because such a prayer was made. And Ground No. 2 is that no useful purpose would be served by entertaining the Misc. Civil Appeal after a period of over one year after the trial Court had rejected the application for setting aside the ex-parte decree because under the explanation to Order 9, Rule 13 of the Code of Civil Procedure if the judgment-debtor against whom ex parte decree has been passed has preferred an appeal and that appeal has been disposed of against him otherwise than on the ground that he has withdrawn the same then the application under Order 9, Rule 13 does not lie.
10. Shri Limaye, respondent No. 1, in person contested the petition and urged that grave injustice has been meted out to him by the trial Court as well as the lower Appellate Court in not considering the facts and circumstances of the case under which a fraudulent ex parte decree has been passed against him and at any rate he could not avail of an opportunity to lead his evidence in defence. He contended that even in this petition this Court should consider these facts and should not allow the relief claimed by the petitioner. Lastly, he urged that he had moved this Court seeking for a review or the order of rejection of his writ petition No. 549 of 1985, which for purposes of record was rejected on February 11, 1985. He, therefore, seeks time to secure orders that both, this petition well as the review petition should be consolidated and heard together.
11. At the outset I must reject the last contention of respondent No. 1 for seeking the consolidation of the petition and the review petition at this late hour. The review petition will have to be decided by the learned Judge who rejected the writ petition in February 1985 and the present writ petition has come before me as per the jurisdiction vested in me under the roster. Moreover, the substance of that petition is entirely different than the reliefs claimed by the decree-holder in his writ petition before me.
12. There is much substance in the contention raised on behalf of the petitioner. It is well settled that after an ex parte decree is passed, two remedies are available to the judgment-debtor in such decrees. He can prefer an appeal before the Appellate Court challenging the decree on merits on the ground that he could not avail of an opportunity to defend the suit. And the other remedy is provided under Order 9, Rule 13 of the Code of Civil Procedure. The explanation below Rule 13 of Order9, however, reads as under:
“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”
13. The very purpose of incorporating this explanation which was added to Rule 13 of Order 9 by the Amending Act 104 of 1976 is to avoid multiplicity of the proceedings before the Courts below. It is expected that when an ex parte decree is challenged on merits before the Appellate Court the judgment-debtor would point out that the decree was either ex-parte or fraudulently obtained ex-parte and that no reasonable opportunity was offered to him to complete his defence evidence. If that be so then again pursuing a parallel remedy under Order 9, Rule 13 is neither desirable nor called for. The explanation also makes it clear that if the appeal has been disposed of on any ground otherwise than on the ground that the appellant has withdrawn the appeal then alone the application under O. 9, Rule 13 would not be maintainable. In other words, if no final adjudication is made in the appeal since the appeal is withdrawn by the appellant, the judgment-debtor is allowed to pursue this remedy for setting aside the ex-parte decree under O. 9 Rule 13 of the Code of Civil Procedure. From the genesis of the present case which I have narrated above it will be seen that after the original decree was passed in December 1983 the regular appeal was dismissed in November 1984 and the writ petition to High Court came to be rejected in February 1985. Misc. Civil Application for setting aside the ex-parte decree was also rejected on April 7, 1984. It was rejected on merits holding that the decree was not an ex-parte decree and it must be noted that at the relevant time the regular appeal was not preferred.
14. It is a circumstance which bears consideration inasmuch as the judgment debtor did not challenge the dismissal of his application under O. 9, Rule 13 of the Code of Civil Procedure. By reasons of non receipt of copies, as contended by him there was delay in preferring a regular appeal before the District Judge which was also rejected in November 1984 and finally the writ petition in High Court was rejected in February 1985.
15. His further actions show that after the dismissal of the writ petition he preferred a regular suit challenging the original decree of 1983 on the ground of fraud and thereafter in July 1985 he filed that suit in regular Civil Court bearing Civil Suit No. 935 of 1985. He did not secure injunction in that regular suit and it is thereafter that his Misc. Civil Appeal No. 1085 of 1985 came to be filed in an appeal against the order dated April 7, 1984.
16. As already observed the explanation to Rule 13 of O. 9 makes it clear that if there has been an appeal preferred against the original decree and if that appeal has been disposed of on any ground other than that of withdrawal then the proceedings under O. 9, Rule, 13 do not lie.
17. If that be so then assuming that the delay is condoned and the misc, appeal for challenging the order of rejection of the application under O. 9, Rule 13 is to be considered, the same would be a mere waste of time as the said proceedings are no maintainable as in the mean time the appeal having been preferred against the original decree has been disposed of on the grounds other than the withdrawal. In that event of the matter the impugned order as well as the proceedings under O. 9, Rule 13 of the Code of Civil Procedure are not tenable any more and the petition deserves to be allowed to that extent.
18. The respondent has pointed out that he has other remedies available under the law for starting the execution proceedings and challenging the decree passed on December 15, 1983. The respondent is at liberty to avail of such legal remedies as are available in law, however, so far as this Court is concerned, the petition concerns only the impugned order dated July 30, 1985 and from that angle as already held above the same will have to be quashed and set aside.
19. In the result, therefore, the petition is allowed. The petitioner is granted relief in terms of prayer Clause ‘b’. Rule is made absolute as above. No order as to costs.
