IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 RSA.No. 969 of 2009() --------------------- AGAINST THE ORDER DATED 08/07/2003 IN IA 646/98 IN AS.95/1998 of DISTRICT COURT, PATHANAMTHITTA OS.85/1996 of SUB COURT, THIRUVALLA .................... APPELLANT(S): -------------------- MOHANAN VARAPUZHAMALAYIL, OTHARA EAST, ERAVIPEROOR, THIRUVALLA. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- USHA BHAI, ERANOOR HOUSE, THALAYAR, KUTTOOR, THIRUVALLA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.969 OF 2009 -------------------------------- Dated this the 29th day of November 2010 JUDGMENT An exparte decree passed in a suit for money is challenged by the appellant/defendant in the appeal. He had earlier moved an application for setting aside that exparte decree under Rule 13 of Order 9 of the Code of Civil Procedure. That application was admittedly dismissed, according to the counsel, for default. Later, his regular appeal preferred against the exparte decree moved with a petition to condone delay was also rejected as the lower appellate court was not satisfied with the ground canvassed for condoning the delay. As against the decision rendered by the lower appellate court, the appellant has preferred this Second Appeal. 2. I heard the learned counsel for the appellant. The appeal is prima facie not entertainable as the appellant could have resorted only to a challenge against the order passed in his application moved for setting aside the exparte decree under Rule 13 of Order 9 of the Code of Civil Procedure. Once that application was dismissed, his remedy was to move an appeal as provided under Order 43 Rule 1 of the Code. He could not have preferred a regular appeal as against the exparte decree passed R.S.A No.969 OF 2009 - 2 - in the suit after the dismissal of his application moved under Order 9 Rule 13 of the C.P.C. The apex court, in Bhanu Kumar Jain v Archana Kumar and another (AIR 2005 Supreme Court 626), analysing the above question, has observed that though the party who suffered an exparte decree has two options, one to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code on negativing of one of the cause taken by him, the doctrine of 'issue estoppel' as also 'cause of action estoppel' may arise precluding him from challenging the correctness of the exparte decree adopting any other course. Adverting to the 'Explanation' brought into Order 9 Rule 13 of the Code by the Amendment Act 104 of 1976 it is stated that when an appeal is preferred against an exparte decree, the dismissal of such appeal, on any ground other than its withdrawal, will preclude the party against whom such exparte decree had been passed to prosecute the application under Order 9 Rule 13 of the Code. Though there is no similar provision barring the prosecution of an appeal against the exparte decree after dismissal of an application moved under Order 9 Rule 13 of the Code, the apex court has held the same principle as applicable to the dismissal of the application has to be followed. R.S.A No.969 OF 2009 - 3 - Doctrine of 'issue estoppel', or 'Cause of action estoppel' would apply in such a situation. When an application under Order 9 Rule 13 of the Code is dismissed, the defendant can only have the remedy available, ie, to prefer an appeal in terms of Order 43 Rule 1 of the Code. Such being the position of law, the present appeal preferred by the appellant is not entertainable. Appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv