* 1 * CRA-166/2005 23.9.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 166 OF 2005 Mahadev Dagadu Ahivale and anr. .......Applicants V/S. Sahebrao Dagadu Ahivale and Ors. .........Respondents * * * * * * Mr. N.P. Deshpande, Advocate for the applicants. None for the respondents. Coram : Smt. R.P. SondurBaldota, J. 23 September, 2010. P.C. : 1. This Revision Application challenges the order dated 23rd September, 2005 passed by the Joint Civil Judge Senior Division, Pune on the ground that it is affected by jurisdictional error. The notice of the revision application has been served upon the respondents. They have, however, not appeared at any stage of the application. 2. The applicants are the heirs and legal representatives of one * 2 * CRA-166/2005 23.9.2010 Sulochanabai, who had filed suit against respondent no.1 for possession of premises and recovery of an amount of Rs.7,400/- for use and occupation of the same. The suit came to be decreed ex- parte on 13th February, 1993. Respondent no.1 then filed an appeal against the ex-parte decree alongwith an application for condonation of delay being Miscellaneous Application No.223 of 1994. The application for condonation of delay in filing the appeal came to be dismissed for default. Consequently, the appeal filed was also dismissed as barred by the law of limitation. Thereafter, respondent no.1 on 1st March, 1994 filed an application under Order 9 Rule 13 Civil Procedure Code for setting aside the ex-parte decree alongwith an application for condonation of delay. By the order dated 23rd September, 2005 the trial court allowed both the applications. It condoned the delay in applying for setting aside the ex-parte decree and also set aside the ex-parte decree. This order has been impugned in the present application as being affected by jurisdictional error. 3. The applicants are some of the heirs of Sulochanabai, the original plaintiff. They claim to have become entitled to the suit * 3 * CRA-166/2005 23.9.2010 property by virtue of a will executed by her. Respondents no.2(a) to 3 are the other heirs of Sulochanabai who are not claiming any right to the suit property. Mr. Deshpande, the learned counsel for the applicants, submits relying upon the explanation to Order 9 Rule 13 Civil Procedure Code, that the application for condonation of delay filed by respondent no.1 after his appeal came to be dismissed as barred by the law of limitation, is not maintainable. The provision of Order 9 Rule 13 reads as follows :- O.9 R.13- Setting aside decree ex-parte against defendant- In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Cort that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also : [Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an * 4 * CRA-166/2005 23.9.2010 irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.] [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.] 4. The language of the explanation to the Rule makes it clear that an application for setting aside the ex-parte decree can lie after filing of the appeal only in the circumstance where the applicant has withdrawn his appeal and in no other circumstance. This express provision in Civil Procedure Code has been considered and appreciated by the learned Single Judge of this Court in his judgments in the case of (i) Vasantdada Shetkari Sahakari Sakhar Kharkhana Limited, Sangli V/s. B.B. Consulting N’ Engineering ‘ Pvt. Ltd and Ors. reported in 2001(1) Mh.L.J. page 871 and (ii) Vijay Prabhakar Salukhe V/S. Kamini S. Dadarkar reported in 2001(2) Mh.L.J. page 955. The ratio of the two decisions is that where an appeal preferred against an ex-parte decree is dismissed * 5 * CRA-166/2005 23.9.2010 as being barred by limitation application for setting aside ex-parte decree under Order 9 Rule 13 is not maintainable. The explanation to Order 9 Rule 13 Civil Procedure Code brought on statute by way of an amendment to Civil Procedure Code by Amending Act 104 of 1976, prevents the litigant from approaching two forums simultaneously. The legislative attempt to incorporate Explanation was to discourage two-prolonged attack on the decree passed by the Civil Court and to confine the defendant to single course of action. If the litigant does not withdraw the appeal filed by him, but allows it to be proceeded with then he does not have right to apply under Order 9, Rule 13 of the Civil Procedure Code. 5. In view of the clear provision of law expressed in the explanation to Order 9 Rule 13 Civil Procedure Code, the impugned order clearly suffers from jurisdictional error as the application filed thereunder alongwith the application for condonation of delay was not maintainable. The Revision Application is allowed in terms of prayer clause (a). No orders as to costs. [Smt. R.P. SondurBaldota, J]