19. In A. K. P. Haridas v. V. A. Madhavi Amma and others, MANU/KE/0076/1988 : AIR 1988 Ker 304, the Court observed that the remedy under Order IX, Rule 13 and that by way of appeal are not inconsistent, or mutually exclusive. There is no bar in resorting to both the remedies simultaneously or any of them alone. The relevant paragraph reads as under :
There is no bar in resorting to both the remedies simultaneously or any of them alone. Only thing is that when both remedies are attempted and one succeeds the other becomes infructuous since the object and effect of both is the same. Availability of the remedy by way of appeal is no bar to an application under Order IX. Rule 13, if such a remedy is also available to the party. For example when the defendant is set ex parte under Order IX. Rule 6 and an ex parte decree passed, though that decree is appealable, an application under Order IX, Rule 13 also will lie. The real question for consideration is only whether an application under Order IX, Rule 13 will lie.
20. Thus, it is imminently clear that a decree passed for defendant's default in filing written statement is an ex parte decree duly comes within the ambit of Order IX, Rule 13 and as such an application to set aside underOrder IX, Rule 13 is maintainable.
Held in :
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Decided On:
Appellants:
Vs.
Respondent:
Also see
ReplyDelete2005 1 SCC 787 - Bhanu Kumar Jain - which reiterates that appeal and recall can be moved @ the same time.
Dual Remedies Available
ReplyDeleteIn Bhanu Kumar Jain v. Archana Kumar, the Supreme Court clarified that when an ex parte decree is passed, the defendant has two options: filing an appeal under Section 96 CPC or filing an application under Order IX Rule 13 CPC. He can take recourse to both proceedings simultaneously. However, if the appeal is dismissed resulting in merger of ex parte decree with appellate order, then application under Order IX Rule 13 would not be maintainable. Conversely, if application under Order IX Rule 13 is dismissed, the defendant can still prosecute the appeal as the right to appeal cannot be taken away.