Holding

The Explanation to Order IX Rule 13 bars a Rule 13 application when the appeal against an ex‑parte decree is disposed of on any ground other than the appellant’s withdrawal, including dismissal for limitation.

Summary

The wife filed a petition under Section 13 of the Hindu Marriage Act for divorce, and the trial court passed an ex‑parte decree in her favour on 6‑12‑1979. The husband appealed the decree under Section 96 of the CPC and sought condonation of delay under Section 5 of the Limitation Act, but the appeal was dismissed on the ground of limitation. He then applied to the trial court under Order IX Rule 13, CPC, to set aside the ex‑parte decree, also seeking condonation of delay, but both applications were rejected. The High Court held that the Explanation added to Order IX Rule 13 did not bar the application because the appeal was dismissed on limitation, not on merits, and restored the decree. The Supreme Court interpreted the Explanation to mean that any disposal of the appeal on a ground other than withdrawal— including dismissal for limitation— bars a Rule 13 application, and therefore set aside the High Court’s order, restoring the ex‑parte decree. The appeal was allowed, and no costs were awarded.

Issues considered

Whether the Explanation to Order IX Rule 13, CPC bars a Rule 13 application when an appeal against an ex‑parte decree is dismissed on a ground other than withdrawal of the appeal.
Whether dismissal of an appeal on the ground of limitation constitutes ‘disposal of the appeal’ within the meaning of the Explanation.
Whether the bar under the Explanation applies irrespective of whether the appeal was dismissed on merits or for procedural reasons.

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 13 (Explanation)
Code of Civil Procedure (Amendment) Act, 1976s. Act 104 of 1976 (introduction of Explanation)
Hindu Marriage Act, 1955s. Section 13
Limitation Act, 1963s. Section 5

Subjects

ex‑parte decreeOrder IX Rule 13Explanationappeal dismissallimitationcivil proceduremerger of decreesmaintainability

Judgment

372

RANI CHOUDHURY

v.

B LT ..,coL. 'SURAJ JIT CHOUDHURY

August 24, 1982.

[R.S. PATHAK AND AMARBNDRA NATH SEN. JJ.J
Interpretation of"Exp/anation" in a statute-Explained,
c
Maintainability of an application undtr Rule 13 of Order I~, lfhen an
appeal preferred under section 96 Civil Procedure Code with an application under
stction 5 of the Limitation Act has been .dismissed-Scope of. Rule 13 of
Order IX, C.P.C.-Words & Phrases--"On any ground_ other than the ground.that
the appellant has withdrawn the appeal", meaning of.
D
The appellant wife filed on 1.9;1979, a petition under section 13 of the
Hindu Mar-.:iage Act, against the respondent for dissolution of her marriage with
him and for a dCcree for divorce." The next date o( bearing was fixed for
6.12.1979. On J0.11.1979, the respondent husband bad addressed a letter to tbe
court requesting the court f~r an adjournment of the case fi.7t:ed for 6.12.1979 on "!
the ground that because of special assignment it would not be possible for'him
E to be present in Court on that day. On that date, the court ~efused to grant the
(
adjournment and passed an ex-parte decree in favour of the appellant.

The respondent husband, thereafter preferred an appeal under section 96
of the Civil Procedure C~de before the High Court with an application under
section 5 of the Liniitation ·Act to condone the delay in filing. The High Court
dismissed the condonat1on ~application as well as the appeal. Thereafter the
F respondent husband moved the Trial Court with an application under Rule_ 13
of Order IX with an application under section 5 o.f the Limitation Act. ·Both
the applications were dismissed. The "respondent husband moved the High Gourt jl
against the said orders of dismissal which was accepted rejecting the contention_
of the appellant wife that the newly added Explanatio·n to Rule 13 of Order IX
C.P.C. is a bar to the maintainabilily of the application itself filed by the
G respondent ~usband' under that Rule. Hence the appeal by the appellant wife,
after obtaining special leave of the Court. ;

Allowing the appeal the Court,

H HELD :~Per Pathak, J. (Concuning with A.N. Sen, J.)

I. No doubt the provision is described :is' an 'Explanation', but it is not the
ni\>ri9 which decisivelr1detln~~ tJl~ trµ~ liature of a statutory provision. Its truQ
RANI CHOUDHURY v. SURAJ JIT SINGH (Pathak, J.) 373

nature must be determined frorii the con°tent of the provision, its import gathered A
from the language 'employed, and the language construed in the context in which
the provision has been enacted. What was the law before the amendment, what
was the ~ischief and defect for· which the law did not provide, what remedy has
Parliament resolved and appointed tb cure the mischief, ai;id the true reason of

.
the remedy. [376 E·G, 377 A-BJ

D
-· RUie in Heydon' s case, 16 English Reports 637; Swant raj & Ors. v: State
of Maharashtra [1974],3 SCR 287, followed.

2:1. The Code of Civil Procedure (Amendment) Act, 1976 was enacted·
with the avowed purpose of abridging and simplifying the procedural la~. Prior
to it a defendant burdened by an ex-parte· decree could apply to the trial court
under Rule 13 of Order IX C.P.C. for setting aside· the decree: He could alsO c
appeal under section 96 against' the decree. The mere, filing of the appeal
did not take away -the jurisdiction of the trial court to entenain and dispose of
application for setting aside the ex~parte decree. It was where the appeal was
disposed of, and the appellate dCcree superseded the trial court decree by revera
~ing, confirming or _varying it that the trial court could not proceed to set aside
> .. its ex-parte decree. For the trial court. decree was said to have ~erged with
·~the appellate decree. Prior. to the Amendment Act, the courts were open to a D
duplication of proceedings, and although the ·immediate relief claimed in the
two proceedings was not identical both ultimately aimed at a redecision on the
merits. The earlier disposal of either resulted in the other becoming infructuous.
The plaintiff, therefore, was in the unfortunate position of being dragged through
two courts in simultaneous procee~ings. (376 A-C, 377 C-D]

E
)
,, 2:2. .Public time and private convenience and money was sought. to be
saved by enacting the Explanation. By enacting the Explanation, Parliament
left it open to the defendant to apply under Rule J 3 of Order IX for setting aside
an ex-parte de_cree only if the defendant had opted n~t to appeal against the ex~
parte decree or. in the ca.se where he had preferred an appeal, the appeal had been
withdrawn by him. The withdrawal of the appea_I was tantamount to effai;ing it.
It obliged the defendent to decide whether he would prefer an adjudi('.ation 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 IX. The legislative attempt- incorporated in
the Explanation was to discourage a two-pronged attack on the decree and to
coafin·e the defendant to a single course of aCtion .. If he did not withdraw the
appeal filed by him, but allowed the appeal to be qisposed of on any other ground, -
he was denied the right to apply under r. 13 of Order I~. The disposal of the G
appeal on any ground whatevtr, apart from the withdrawal, constituted sufficient
reason
- for bringing
. .the ban.( into operation. [377 o.o, 378
. A]

2:3. In the present case, the appe.al was dismissed as barred by limitarion
and the order w.is one disposing of the appeal on Qny other ground. [378 A]
H
M/s. Mela Ram & Sons v. Com1nis$io11er of J~ome~t4x 1 (1956] S.C.R. 166,
'followed. ··
374 SUPREME CQIJRT REPORTS [1983) J S.C.R
A Per Amartndra Nath Sen, J.

1:1. A proper interpretation of the Explanation, makes it clear that where
there has been an appeal against an ex-parte decree and the appeal has not been
withdrawn by the appellant and has been disposed of any ground, thC application
uader Rule 13 of Order IX of the Code of Civil Procedure will not lie and cannot
B be entertained. [384 G-H]

2:2. The words used in the Explanation are clear and unambigious. The
language used in the Explanation makei.; it clear that the withdrawal of the
appeal is considered to be disposal of the appeal, as contemplated by the
Explanation.· Though an appeal may be disposed of on very many grounds, the
Legislature has thought it flt to provide in the Explanation that only when an
G appeal against an ex-parte decree is diSposed of on the ground that the appellant
has withdrawn the appeal, the bar created to the maintainability of an application
under Order IX, RuJe 13 of the Code for setting aside the ex-parte decree will not
apply. The Le8islature must be presumed to know that there are various ways
of disposal of an appeal and that in all other cases of the disposal of the appeal
on any other ground than the ground of \'11ithdrawal of the appeal, there -will be
a bar tc• the maintainability of the applicattion under Order IX, Rule 13 and no
D application wilt lie for setting aside the ex-parte decree. Withdrawal of appeal
by an appellant does not result in any adjudication on merits. Even, then, the
withdrawal of an appeal is still considered to be a disposal of the appeal, but not
creating a bar for the· maintainability of the application under Order
IX Rule 13. [383 E, 384 B-GJ

E 1:3. In the iD.atant case, the appeUant had not withdrawn the appeal. His (
application for condonation of delay was rejected by the High Court and there-
fore, the appeal was dismissed on the ground of limitation.· The appeal filed
against the ex-parte decree was, therefore, disposed of on grounds other than
the ground of withdrawal of the appeal. The application under Order IX,
Rule 13, after tke disposal of the appeal, therefore, became incompetent. [385A-B]

F 2:1. The words used in the Explana,tion make it abundantly clear that
disposal of the appeal as contemplated in the Explanation is not intended to
mean or imply disposal in merits resulting in the merger of the decree of the
Trial Court with the deeree, if any, of th(l Appellate Court on the disposal of
the !ppeal. The Explanation speaks of "the appeal has been disposed of an any
ground other thail the ground that the appellant has withdrawn the appeal"
and these words make it abundantly clear that disposal of the ~ppeal by the
G appellant is also considered to be the disposal of the appeal on the ground of
withdrawal; and, the disposal of the appeal from the ex-parte decree on the
ground of withdrawal of the appeal by the appellant bas only been exempted
from the operation of the Explanation. If the intention was that the Explana-
tion would not be attracted dnd there would be no disposal of an appeal within
the meaning of the Explanation unless the appeal was disposed of on merits
H resulting in the nief8er of ~h() ~ecree of the Trial Court with the decree of the
\.-
RANI-CHOUDHURY v. sURAJ m SffGH (Pathak, J.) . 375

the Appellate-Court, it would not haVe been necessary to provide specifically A
that the disposal of an appeal on the ground 'Of withdrawal would be exempt,
because the disposal of an appeal on the grollnd of withdrawal would not be
disposal of the appeal witQ.io the meaning of the Explanation, as on the with-
drawal of an appeal there is no decision on merits and there is no merger of the
decree with any· decree of the Appellate Court. The legislature could also have
simply provided in the Explanation for the disposal of an appeal on merits and
it would not have been necessary to use the other words, "on the disposal - of an
appeal on any ground othC:r than the gr,0und that the a11pellaat has withdrawn
the appeal. The words used, "disposal of the appeal on any ground othCr
than the ground that the appellant has withdrawn the appeal" will undoubtedly
attract within its ambit the disposa1 of an appeal on the ground of the same
being dismissed for non.prose~ution, though-in the case of such disposal of the
appeal there will be no effective ·adjudication of the at)peal on merits and the
disposal of the appeal may not have the effect of the decree of the trial ·court c
appealed against being merged with any decree of the J\ppellate Court on the
i
' '
disposal of the appeal. (390 D-H, 391 A-CJ

' · 2:2. The disposql of an appeal on the ground of limitation may or may
not be adjudication on the merits Or the appeal, depending on the particular facts

. and circumstances of the case and may or may not result in . the merger
of the decree of the Trial Court with the decree, if any, of the a~pellate
Court; but there cannot be any manner of doubt that when an appeal from the
e:i·parte de~rce is dismissed on the ground of limitation, the appeal is disposed of
D

on any ground other than the ground that the aDpellant , bas withdrawn the
appeal. As the dismissal of the appeal on the ground of limitation results in the
disposal of the appeal on any ground other than the grOuod of the withdrawal of
the appeal by the appellant, the Explanation is attracted, and the application for
) setting aside the ex·parte decree becomes incompetent aft'Cr the disposal of the E
appeal and·cannot be entertained. [391 CF]
.l
Chandri Abdul Majid v. Jawahar Lal, A.LR. 1914 P.C. 66: Kalumuddln
Ahmad v. Eidhakuddin & Ors., A.LR. 1924 Cal. 830; discussed and held inappl!:
cable.
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5 (N)
of 1982.

(From the Judgment and Order dated the 14th September, 1981
of the High Court of Delhi at New Delhi in F.A. No. 29 of 1981)
G
So/i J. Sorabjee, A. Minocha, M;s, Veerna Minocha and
Dr. Roxna Swamy, for the Appellant.

Rnmeshwar Nath for the Respondent. H
The Judgment of the Court was delivered by
------------------
..
•
376 SUPREME COURT REPORTS (1983) I s.c.r< •.
A. ·_PATHAK, J. I agree that the ~ppeal must succeed.-
' ' -,. . \

The real _question . is whether the. Explanati~n(') to i. 13 of
• 0. 9 oJ the Code' of Civil Procedure bars the appeal filed by the res-
pondent against the ex. parte decree. . The Explanation was ' enacted
by the Code of_ Civil Prncedure (Amendment) Act; 1976 with _effect
B from February_· 1, 1977.: Prior. to· its enactment, ·a_ defendant .
burdened by an ex parte decree could . appfy to the trial court under ..
.r. 13 of 0. 9 for selling 'aside the decree. He could also appeal
under s, 96 against the decree.· The mere filing of ·_the appeal did
. not take away the jurisdiction of the trial court' to entertain . and
. dispose of the application for· setting aside the. ex parte. decree.
c It was-where the appeal was disposed· of, and the appellate decree,
. '
- superseded the trial court decree by reversing, confirming or varying
it that . the trial court . could not proceed . to . set 'aside . its
ex parte decree. For the trial court decree was said t~ have merged

D
with the appellate decree. There are of course cases where the trfal
cou~t decre~ · does_ not merge ' with the /appellate decree.' Such
.
. ....
. instances arise _when the appeal is dismissed in· default, or.· where-. it_
is dismissed >s having abated ·by reason of. the omission of the · ·
'appellan~ to implead the legal representatives of a deceased respon-
dent o_r where it is ,dismissed. as· barred by limitation. ·So th tre
·.a limited area where the trial, court decree merges in the appellate
E decree. and when that takes:_ place an application before the' trial .
c-ourt for setting aside-the decfee loses all meaning. It was a limited
area defined by the operation of the. doctrine of merger. From . .... I
February I, 1977 the area was extended enormously. With the
·,EXplanatio.n in operation, no application for setting ·aside, an ex parte I
decree can lie where the defendant has . filed an appeal and the"
F, appeal has been disposed of on any ground other than. the" ground
. that the ap)ieal has been withdrawn by the appellant. No doubt the
.·provision iS describCd as.an "Expla_natio:n'', b~t as is well knoWn
it.is not the rubric which decisively defines the true. nature of a • •
s'tatutory provision. Its true nature must .be 'determined from'- the
content of the- provision, ils import gathered from the· language •
G employed, and the language construed in the context in which the
• ' • \ I ' ' - /' , • • ; ) • • \ ' - ' '

(l} '.'Where there' has been ~n appeal again~t a ,decree passed ex parte
·under this ·ru1e, and the appeafhas been disposed of on anY ground
other than the grouiid that· the appeJlant h~s withdra~n the appeal,
H
on' 3.pplication shat~ Jie under this rUle for Setting ·aside th3.t ex parte '
1

decree.''
I .
RANI CHOUDHURY .v. SURA! HT SINGH (Pathak, J,) 377

provision has been enacted. In the present case, .the· rule in- A
Heydon's case,(') approv~d of and applied by this Court.in
Swantraj & Ors. v. State of MaharaJhtra(') and many other
cMes, is attracted. ,What was the law before the amendment, what
was the mischief and defect for which .the law did not provide,
what.remedy has Parliament reso1ved and appointed to ·cure the
' B
mischief, and the true reason of the remedy.

It has been observed earlier that a defendant intending to
avoid an ex parte decree could. apply to the trial court for setting
it aside and could also appeal to a superior court against .it. The·
courts were open to a duplication of proceedings, and although the c
immediate relief claimed in the· two proceedings was not identical
both ultimately aim.ed at a redecisio_n on the merits. M~'reover, on
the two proceedings initiated by the defendant, the· application
under r. 13 of o. 9 would subsequently become infructuous if the
appeal resulted in a decree superseding the . trial court decree. It
D
was also possible to envisage the .appeal becoming infructuous if
the trial court decree was set aside on the application under r. 13
of 0.9 before the appeal was disposed of. The plaintiff was in the
unfortunate position of being dragged through two courts in simul-
taneous proceedings. Public time and private convenience and
)
money was soilght to be saved by enacting the Explanation. The E.
Code of Civil Procedure (Amendment) Act, 1976 was enacted w-ith
the avowed purpose of abridging and simplifying the procedural law.
By enacting the Exp\ana\ion, Parliament left it open to the defen·
dani to apply \lDder r. 13 of 0. 9 for setting aside an ex parte decree
only if the def~ndant had opted not" to appeal against the ex parto
decree or, in the case where he had preferred an appeal, the appeal F
had been withdrawn by him. The withdrawal of the appeal was
tantamount to effacing it. _It obliged "the defendant to decide
whether he would prefer an adjudication by the appellate ·court on
. ' the merits of the decree or have the decree. set aside by the trial
court under r. 13 of 0 9~ The legislative attempt incorporated in G
the Explanation wnto discourage a two-pronge<) attack .Jin the
decree and to confine• the defendant to a single course of action. If
he did not withdraw the appeal filed by him, but allowed the appeal
to he disposed of ·on any other ground, hi;_ was denied the right to
H
.(!) 76 ER 637.
(2) [1974) 3 SCR 287.
378 SUP~EME (;OURT REPORTS _ (1983] 1 s.c.R.

A apply under r. 13 of 0.9. The 5lisposal of the appeal on any ground
whatever, apart from its withdrawal, constituted ·sufficient reason
for bringing the ban into operation. '

In the present case, the appeal was dismissecj as barred by·
limitation. That it was an appeal even though barred by time is
B clear from M/s. Mela Ram & 'Sons v. Commissioner of Income-tax,(')
where Venkataram Ayyar, J., speaking for the court, after referring
to Nagendranath Dey v. Suresh Chandra Dey,( 2 ) Raja Kulkarni and
Ors. v. The State of Bombay(') and Promotho Nath Roy v. W.A.
Lee(') held that "an appeal presented out of time is an .appeal, and
an order dismissing it as time-barred is one passed in appeal."
There can be' no dispute then that in law what the respondent did
was to file an appeal and that the order dismissint: it as time-barred
was one disposing of the appeal.

Accordingly, the appeal is allowed, the judgment and order
D passed by the High Court are set aside and the ex parte decree
passed in favour of the appellant is restored. There is no order as
to costs.

B AllARENDRA NATH SEN, J. Whether the dismissal of an appeal
against an ex parte decree on the ground that the appeal is barred
by limitation attracts the, provisions contained in the Explanation in
O. 9, R.13 of the Code of Civil Procedure and creates a bar to the
maintainability of an application under 0. 9, rule 13 of the Code of
Civil Procedure for setting aside the ex parte decree, is the question
which falls for determination in this appeal by special leave granted
by this Court.

The question arises in the following circumstances :-

The appellant filed a pe.tition ·against the respondent under
G S. 13 -of the Hindu Marriage Act for the dissolution of her marriage
with respondent and for a decree of divorce. The said ·petition was
filed by the appellant on 1-9-79 and the appellant obtained an ex-

Ol (1956] s.c.R. 166.
H (2) 5911.A. 283, 287.
(3) (1954] SCR 384, 388.
(4) AJ,R.1921Cal.415.

'
RANI CHOUDHURY v. SURA! !IT SINGH (Pathak, J.) 379
., . .
A
parte decree on 6-12-1979. It appears that on 10-11-79 the respon-
dent husband had addressed a letter to the Court requesting the
Court for an adjournment of the case fixed on 6-12-1979 on the
ground that because of special assignment it would not be possible
for him to be present ·in Court on that .day. The Court refused to
grant an adjournment and· on that date an ex- parte decree for B
divorce was passed in favour of the appellant. The respondent
husband preferred an appeal against the ex-parte decree in the High
Court. As the appeal had b.een filed in the High Court beyond
time, the respondent husband also made an application under S. 5
of the Limitation Act for condonation of delay in filing the appeal.
lly its Judgment and order dated 17-3-1981, the High Court dismis- c
sed the application for condonation of delay, holding that no
sufficient cause for coridonation had been made out. The High ·
Court by the same order and Judgment also dismissed the appeal
holding~"the appeal being barred by time is dismissed". The
respondent moved an application before the Trial Court under 0. 3,
rule 13 of the Code of Civil Procedure for setting aside the ex-parte D
decree. The respondent bad aiso moved an application under S. 5
of the Limitation Act for condonation of delay in making the
application under 0.9, rule 13 of the C.P. Code. The learned
Trial Judge held that no sufficient cause had been made out for
condonation of delay and in that· view of· the !natter the iearned
Trial Judge dismissed both the applications. Against the order of E
the Trial Judge, the respondent filed an appeal in the High Court .
. The main contention of the. husband, the appellant in' the High
Court, was that the Trial Court was in error in coming to the con-
clusion that no sufficient cause for condonation of delay had been
made out and the Trial· Court had also erred in n()t setting aside
the ex-parte decree as there was sufficient cause for non-appearance F
of the husband on the date fixed for the hearing of the petition for
divorce. On behalf of the wife, the respondent in the appeal before
the High court, it was urged that the Trial Court was clearly right
on merits in coming to'the conclusion that no sufficient cause had
been made out for eondonation of delay and for· setting aside the
decree and it. was further urged that in view of the provisions con- G
tained in the Explanation in Order 9, rule l3 of the Code of Civil
Procedurn, the application for setting aside the ex-parte decree was
not maintainable, as the appeal preferred by the husband against
the ex·parte decree had already been dismissed by the High Court.
H
The High Court for reasons recorded in its Judgment dated 14.9.1981
380 ·SUPllBME COURT REPORTS (1983] J S.C.ll.
A
came to the conclusion that sufficient cause had been made out
by the husband for condonation of delay in presenting the applica-
tion under 0. 9,. rule 13 beyond the prescribed time, that sufficient
·cause had been made out by the husba1nd for his non-appearance
at the hearing of the petition on 6-12-1979 when the ex-parte
8 decree for divorce was passed and that the Explarn:tion fo
Order IX, rule 13 did not create any. bar to the maintainability
of th~ application und_er Order 9, rule 13, as the appeal against
the ex-parte decree had been dismissed not on merits but on
the ground of Limitation. The High Court held : "Thus I am of the
view that the disposal of an appeal ·against the ex-parte decree.
c means disposal ori merits for debarring the defendant applicant from..
filing or continuing an application for setting aside the ex-parte
decree under Order 9 rule 13 of the Code. If an application for
condonation of delay in filing apppeal bas not been accepted it
means no appeal was preferred in law and dismissal of appeal as
barred by. time would not be disposal of the appeal as contemplated \
·o under Explanation to Order 9 rule 13 of. the Code. I; therefore,
hold that the appellant's application under Order 9, rule 13 of the
Code of Civil Procedure is maintainable" .

. · Against the Judgment and order of the High Court this appeal
has been preferred by the wife with special leave granted by this
E Court.

The main contention raised on behalf of the appellant is that
on a true interpretation of the Explanation in Order 9, rule 13 of ihe
. Code of Civil Procedure the application for setting aside the ex-
F parte decree must be held to be incoinpeten't and not maintainable.
It has been urged that the High Court erred in holding that the
Explanation did not impose any bar to the maintainability of an
application in a case where the appeal is not dismissed on merits. - .

The argument it that the said interpretation by the High Court is
wrong and is clearly unwarranted by the plain language used in the
G said Section. Ii is urged that it is not right to hold that when an
appeal is filed be,yond time and is dismissed on the ground of limita-
tion, there is .no appeal in the eye of law and therefore, no disposal
of an appeal as contemplated in· the Explanation. The learned counsel
has submitted that tbc' decisions of the Privy Council in the case of
H Chandri Abdul Majid v. Jawahar Lal (') and of the Ca!Cutta High

(I) AIR 1914 P. C. 66. ,
RANi CHOUDHURY v. SURAJ JIT SINGH (Pathak, J.) - 381

Court in the case of Kalumuddin Ahmed v. Esabakuddin.& Ors.('J are·
A
of no assistance in interpreting the provisions contained in· the
;-Explanation. in Order 9, rule 13 of the Code of Civil Procedure.

The learned. Counsel has further submitted that the High
Court went wro~g in interfering with the findings of the Trial
B
Court that no sufficient cause·h1d been made out for condonation
_ of delay in filing an application under Order 9, rule 13 of the Code
and in any event there is no justifiable reason for n~n-appearance of
the respondent on the due date for the bearing of the matter.

On behalf of the respondent-husband, it bas been u~ged that
c
on a true interpretation of the Explanation, the High Court bas
correctly held that the Explanation will not apply to a case where
the appeal preferred against an ex-parte decree is dismissed not on
) merits bui on the ground of limitation. Jt is the argument of the
. learned counsel that the Explanation will only apply when the
appeal is dismissed on merits, as in such a case the decree of the
D
Trial Court gets merged with the decree of the appellate Court
and ·naturally the trial Court 'loses its competence to set' aside
the ex-parte ~ecree which was originally passed by the trial
court, but has subsequently merged in the' decree passed by the
)
appellate court. The learned counsel argues that the Explanatfon E
_seeks to embody the principle that when a decree of the Trial Court
gets merged in the decree of the appellate couri, the Trial Court
loses seisin over the matter and becomes incompetent to deal with
- a decree of the appellate court. It is his argument that as in the
instant case the appeal was dismissed on the grou~d of limit~tion
and not on merits, there is no question of any merger of tbe decree
of the trial court with any decree of the appeHate court. He argues
thct an appeal· preferred beyond time, U!lless delay in filing the
app~al is condoned, becomes incompetent and 'is indeed no appeal
" in fhe eye of law. He has placed reliance -on the two decisions of
the-Privy Council in Chandri Abdul Majid (supra) and Ka/imuddin
Ahmed (supra), considered by.the High Court in its judgment. G

The learned counsel further argues that in the facts and cir-
cumstances of this case, the High Court was perfectly justified in
holding that sufficient cause was made out for not making the appli-
H
(I) AIR 1924 Cal. 830.

(
' .

382 SUPREME COURT REPORTS [1983] l s.c:a.

A cation under Order 9, rule 13 within the time prescribed and for con-
doning the delay in making the application, and the High Court was
also clearly justified in coming to the conclusion that the respondent
husband was prevented by sufficient cause for not being. able to '>
llppear on the date fixed for hearing. He submits that in any event
this Court in this appeal should not interfere with these findings of
R · 'the High Court in the larger intere•t of the administration of justice
and this Court should not deprive the husband of the opportunity
of contesting the claim of the wife.

The principal question as to wheiher. the application made by
.C the husband for setting aside the ex-parte decree is competent or
not in view of the provisions contained in the Explanation in 0. 9,
rule 13 of the Code of Civil Procedure turns on a proper interpreta- 1
tion of the Explanation. Order 9, rule 13 of the Code of Civil
Procedure reads as follows :

D
. which a decree 1s. passed ex-parte '
"In any . case m
against a defendant, he may apply to the Court by which
the decree was passed for an order to set aside; and if he
·satisfies the Court that the summons was not duly served,
or that he was prevented by any sufficient cause from
E appearing when the suit was called on for bearing, the (

Court shall make ·an order setting aside the decree as
against him upon such terms a.s to costs, payment into
Court or otherwise as it thinks fit, and shall appoint a d11y
for proceeding with the suit;·
F
Provided that where the decree is of such a nature that
it cannot be set aside as against r.ucb defendant only it may
be set aside as against all or any• of the other defendants
also :

G Provided further that no c011rt.shall set aside a decree
passed ex·parte merely on the ground that there bas been
an 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
H
claim:
RANI CHOUDHURY v. SURA! JIT S!Nyll (Pathak, J.) 383

' :-Where there has been an appeal against
Explanation A
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 applica-
tion.shall lie under this rule for setting aside that ex-parte
de,cree." B
Order 9, rule 13 makes prevision for the setting aside of an ex··
parte decree against the defendant. It lays down the conditions and '
also the procedure for the setting a~ide of an ex-parte decree. The
Explanation was introduced into this provision by the Code of
Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) and it c
has.come into force from 1.2.1977. The proceeding by the· wife was
initiated on l.9.1979 and the ex parte decree of divorce in her
favour was passed on 6.12.1979. The application by the husband
bas .been· mad~ for setting aside this ex parte decree. The Explana-
) tion, therefore, operates; the real question being whether in the facts
and circumstances of this case, the bar created by the Explanation D
to the setting aside of an ex-parte decree is attracted to the present
application.

A plain reading of the Explanation clearly indicates that if any
appeal against an ex-parte decree has been disposed of on any
ground other than the ground that the appellant has withdrawn "E
the appeal, no application for setting aside the ex-parte. decree \
under Order 9, rule 13 of the Code will be entertained. The words
used in the Explanation are clear and unambiguous. The language
used in the explanation clearly suggests that where there bas been
an appeal against a decree passed ex-parte and the appeal has been
disposed of on any ground other than the ground that the appellant F
has withdrawn the appeal, no application shall lie under. Order 9,
rule 13 of the Code fat setting aside the ex parte decree. An appeal
may be disposed of on various grounds. It may be disposed of
after proper hearing on merit• and this is usually the normal way
of disposal of an appeal. An appeal may be disposed of also for
non prosecution thereof. Though the dismissal of an appeal on the
G
ground of non l'rosecution of the same is not disposal of the appeal
on merits, yet the dismissal of the appeal for non-prosecution
results in the disposal thereof.. An appeal may also be dismissed
on the grcund of limitation, if condonation of delay in filing the
H
appeal is not allowed by the Court. An ·appeal may: also be liable
to be dismissed for non compliance with any condition relating to
384 SUPREME COURT REFpRTS [1983] I s.c.R.

A
the filing of !he appeal and also for other reasons. An appellant is
also entitled to withdraw the appeal and the withdrawal of the
appeal also results in the disposal of the appeal, though in such 'a
-
case no merits of the appeal are adjudicated upon. The language
used in the Explanation makes it clear that the withdrawal
.

of an appeal is considered to be disposal of the appeal, as
contemplated in the Explanation. It is significant to note that
though an appeal may be disposed of on very many grounds
the Legislature has tbought it fit to provid ~ in the Explanation that
only when an appeal against an ex parte decree is disposed of on the
ground. that the appellant has withdrawn the appeal, the bar created
c to the maintainability of an application under Order 9, rule 13 of ..
the Code. for setting aside the ex parte decree will no.I apply. The
Legislature must be presumed to know that there are various
ways of disposal of an appeal. The legislature has, however,
thought it fit to provide that when an. appeal has been preferred
against an ex pa rte decree, the disposal of the appeal on any ground
D excepting the solitary ground of disposal of the appeal by with-
drawal of the same by the appellant, will create a bar to the main-
tainability of an application- under Order 9, rule 13 of the Code of
Civil Proced~re. By specifically providing in the Explan~tion that
the disposal ·of any apreal from the ex parte decree on any ground
. other than the solitary ground of withdrawal of the appeal by the
E appellant, the legislative intent is made manifestly clear that in all (

other cases of the disposal of the appeal on any other ground than
the ground of withdrawal of the appeal, there will be a bar to
the maintainability of the application under Order 9, rule 13 and no
application will lie under Order 9, rule 13 for the setting aside of an
ex•parte decree .. Withdrawal of an appeal by an appellant does not
F result in any adjudication on merits. Even then, the withdrawal of
an appeal is still considered lo be a disposal of the appeal ; and the
disposal of an appeal only on this ground of withdrawal of the
appeal by the appellant. it• is made clear in. the Explanation, will not
create-any bar to the rnaintainabil)ly of the appli~~tion under Order
G 9, rule i 3 of the Code of Civil Procedure. On a proper interpreta-
tion of the Explanatk1n we are of the opinion that where
there has been an appeal against an ex· parte decree and the appeal
has not been withdrawn by the appellant and has been disposed of
on any ground, the application under Order 9, ~ule 13 of the Code
H of Civil Procedure wi:J not lie and cannot be entertained,
I

RANI CHOUDHURY v. SURAJ JIT SINGH (Pathak, J.) 385

·In the insiant case, an appeal had admittedly been filed against
A
the ex-parte decree. The appeal was beyond time. The appellant
had not withdrawn the appeal. The appellant had filed an appli-
cation for condonation of delay in preferring the appeal. The
application for condo nation of delay had been rejected by the Court
and the appeal had been dismissed on tl)e ground of limitation. The
B
dismissal of the appeal on the ground of limitation .resulted in.
disposal of the appeal though not on merits. The appeal filed
against the ex parte decree was, therefore, disposed ofon grounds
. othe~than the ground that the appellant had withdrawn the appeal.
The application under Order 9, rule 13 after the disposal of the
appeal, therefore; became incompetent in view 'of the provisions c

•
contained in the Explanation and could not therefore be entertained
. '
by the Court. The view expressed by the High Court must, there-
fore; be held to be erroneous.

In. support of the view taken by the High Court, the High
D
Court referred to and relied on the decision of the Privy Council in
the case of Chandri·Abdul M_ajid (supra). The decision of the Privy
Council, in our opinio'n, has no material ·bearing on the question
involved ·in the present appeal. In the case before the Privy Council,
the Judicial Committee was concerned with the question as to the
commencement of· the period of limitation in respect of a decree
. pas~d by the Trial Court,· affirmed by the High Court on appeal
and a further appeal therefrom to the Privy Council was dismissed by
'the Privy Council for non-prosecution of the appeal. The appellant
before the Privy Council wa~ fo the position. of a mor1gagor and the
Respondents of mortgagees under. a mortgage dated 3rd· September,
1868. In 1889 a .suit was commenced before the Subordinate F
. Judge of Allahabad to enforce that mortgage and on the· 12th May,
J 890, a decree was passed .by him for the sale of the property unless
payment was made on or before the 12th August, 1890.
An appeal was brought ·from that decree to the High Court
• and on the 8th April; _1893 that appeal was dismissed and the decree
·of the Subordinate Judge was confirmed. The mortgagor obtained G
leave to appeal to the Judicial Committee but did not prosecute his
appeal; and on the 13th May, 1901, the appeal was dismissed for
want of prosecution .. · The Mortgagor decr.ee-holder made· an
? .J application to the Subordinate Judge on the I Ith June, 1909 for an
H
order ~bsolute to sell. the mo_rtgaged properties ; it appears that an

•
386 SUPREME COURT REPORTS [l983j 1 s.c.R

A order had, been made on the said application t'Or execution in
favour of the decree-holder and ultimately the validity of the execu-
tion proceedings went to the Privy Council for consideration.. The
main argument before the Privy Council was that the decree which
was sought to be enforced had been 1:onstructi vely tnrned into a
. decree of the Privy Council by virtue of the dismissal of the appeal
B by the Privy Council on 13.5.1901 for non.prosecution of the appeal
and the period of limitation, therefore, was 12 years from 13.5.1901.
The Judicial Committee rejected this contention holding that the
order dismissing the appeal for want of prosecution did not deal
judicially with the matter of the suit and could in no sense be
regarded as an order adopting or confirming the decision .appealed
c from. The Judical Committee held that as there was no decree by
the Judicial Committee adopting or confirming the decision appealed
from, and as there was never any stay of the decree passed by the·'
High Court affirming the decree of the Subordinate-Judge, the
period of limitation will run from the date of the passing of the
decree by the High C6urt and the period will be three years from
n the date of the decree passed by the High Court. The Privy Council
allowed I.be appeal holding th.at the application dated 11.6.1909 for
sale of the mortgaged properties was barred by limitation. While
considering the question whether the period of limitation should be
effective from the date of the dismissal of the appeal by the Judicial
E Committee for non prosecution thereof, the Judicial Committee had
made the following observations :

\
"The order dismissing the appeal for want of ptosecu-
tion did not deal judicially with the matter of the suit and
F could in no sense be regarded as an order adopting or
confirming the decision appealed from. It merely recognis-
ed authoritatively that the appeliant had not complied with
the conditions under which the appeal was open to him,
and that therefore he was in the same position as if he had
• not appealed at all."
G
This position wa~ made abundantly clear by the Judicial Committee
by the observations immediately following :

"To put it shortly, the only decree for sale that exists
is the decree, dated 8th April, 1893, and that is a decree of
the High Court of Allahabad."
RANI CHOUDHURY v. SURAJ Jlf SINCIH (Path.1k, ]_) 387
A. ,
In the case of Kalimuddin Aharped v. Essbokuddin and' Ors the.
material facts were :

A partition suit was instituteJ !on 20.12.1918 against several·
defendants, among whom the appellant before the High Court was ·
No. 4. Two of the defendants contested the suit and on 22.9.1919 a B
preliminary decree for partition was made on contest against two
of the defendants and ex parte against. the others. The appellant
did not appear at all in the first Court and he was .one of the defen-
dants against whom the decree was made ex parte. On 17.12.1919
., the first defendant alone preferred an appeal against the decree to
the High Court and on 20.12.1919 the appellant presented an appli-
cation to the Trial Court under Order, 9, rule 13 of the Code of
c
·Civil Procedure. This application was kept pending until after the
disposal of the appeal preferred by the first defendant. One of the
respondents in the appeal filed by the first defendant died and as
) the appellant did nor take proper steps. to bring· the .heir; on the
record, the 'appeal was dismissed as against them a nd then against n·
·the others it was held that in the absence or' the heirs of the
deceased respondent the appeal could not proceed and the ap~~al.
.... was acc~rdingly dismissed on 5th January 1922. Thereafter the appli-
cation of the appellant under 9, rule 13 of Code of Civi\ Procedure
came up for bearing and on 8th April 1922 a petition of compro-
mise between the plaintiff and the. appellant was presented and in E
accordance therewith the Court ordered that the suit should be
restored 'to its original number as against the applicant who was
defendant No. 4 in the ·suit in regard to three only of the plots
mentjoned in the plaint. In making this order, the Court proceeded
oil the compromise. alone without any enquiry as to the causes
. which prevented defendant No. 4 from appearing at the trial. In
July, 1922, a different .Judge was presiding over the Court and on
5th July, 1922, be expressed doubt as to the legality of the order
'passed by his predecessor on 8th April, 1922 and after hearing the
arguments he delivered bis judgment on 7th July, 1922 holding that
the order passed by his predecessor on 8th April, 1922 was made
without jurisdiction because, there was no longer any ex parte decree
G'
over which the Court had control and the said order was a nullity
and utterly void so that no proceeding to set it 'aside were necessary
and the'fact of the order being made on consent as aga!nst the
> .. plaintiff could not convert it into a valid order. Against 'this judge-
H
ment, an appeal was filed in the Higl\ <;::ourt, A division Bench o(

'
388 . SUPREM~ COURT RBPORTS [1983] l s.c.tt.

the Calcutta High· Court treated, the appeal as a revision petition
under S. 115 and set aside the order, holding that when an ex parte
. decree was appealed against and also an application to set aside was .
made but the appeal was dismissed· for not bringing the representa-
r
tives of the deceased respondent on record, the ex parte decree did
not merge in the appellate decree and an order passed on consent
B on th.e application to set aside the dicree was not without jurisdic'.
tion. The decision of the Judicial Committee in Abdul Majid' s case
was also considered in this case. Walmsley, J. held at p.1832 as
follows : '

c "The order of this Court may be a decree, without
being such a decree as to supersede the decree of the lower
Court. All that this Court decided was that having regard
to the nature of the appeal, a certain defendani was a
necess·ary party, and that in. the absence of that defendant,
or on her death her representatives, the appeal could not
D proceed. On the merits of the appeal in other respects
there was no adjudication, but on the contrary an express
refusal to adjudicate. Consequently it is of no importance
whether the order did or did not amount to a decree. What
is of importance is that it was not a decree in which that of
E the lower Court w11s merged."
'-

Mukherjee, J., the other learned Judge on the Bench observed at
p. 834:

"Now the consideration of the question as to whether
the.learned Subordinate Judge had .jurisdiction to pass the
order of the 8th April, 1922 involves a consideration of the
·following questions (a) whether the order of this Court
passed on the 5th January 1922, amounted to a decree or
not, (b) if it was a decree, whether. the ex parte decree can
G be held to have merged into it, (c) whether the I.earned
Subordinate Judge had jurisdiction. to set aside the ex parte ·
decree and restore the suit, and (d) whether his successor
could declare .or was right in declaring the aforesaid order
a nullity., . · ·
lJ
.'
.•
As to (a) : · The definition of the word 'decree' in the
~ode of Civil Pro9ed1ue, iq so f11r as it purports to be a .
RANI CHOUDHURY v. SuRAJ !IT SINGH (Pathak, J.)
' 389
A
definition at all, lays down the following essential and dis·
ti11gulshing elements viz., that the decision must have
been expressed in a suit, that the decision must have , been
passed on the rights of the parties ·with , regard to all or
any of the matters in controversy in the sui,t, that th'e
decision must be one which conclusively determines those B
rights. Then certain <!rders which may or may not satisfy
the above requirements are either expressly included in or
excluded from the definition. The whole object of defining•
,
a 'decree' in the said Code appears to be to classify orders
in,order to determine whether an appeal or in certain cases
a second appeal lies t,herefrom. Apart from that object_ c
this definition is of no value. I am not prepared to accept
_the contention of the respondent that because an order
rejecting a plaint is a decree, an order, dismissed an appeal ,
on the ground that it was improperly constituted is by'
mere analogy to be:treated , as a decree" I am unable to •
> reconcile either in principle or in the,ory why an order D
rejecting a plaint should st and on a dilferept f9oting from
orders of dismissal for.default, and yet one is a decree and
the other is not. It is true that an order of rejection of
a plaint ha~ been expr7ssly included in the definition of
a 'decree' but the legislature has included it and no analogy E
can be' drawn · therefrom. · The question whether· an
adjudication is an order or decree i,s to , be tested not by
.
\
general principles, btit by the expressions of the Code, and
those words are to be construed in their plain and obvio~s
0

sense."
F
The learned 1udge further held at p. 835 ;-

"Here the position \Vas that ,the , plaintiff bad got a
decree as against the defendants in respect of a certain G
·share;' one of the defendants viz., the defendant No. l,
had preferre'd the appeal; excepting the question as to
whether the appeal was maintainable' in the absence of the
minors, the heirs of the defendants No, 6, no other question
was gone into, and in fact none could be litigated, and H
what is more important h wh\lt th.~ rights 'or the defendant
390 SUPREME ,COURT REPORTS [1983) I S.C.R.

A No. 4 were as against the plaintiff or whether the ex parte
decree passed against him was a good or valid one, or
whether it should stand at all, could scarcely be determined
in that appeal. ,.

There. is no authority for the proposition that under
B circumstances such as these, the ex-parte decree can possibly
be said to hav;i merged in the decree by passed the
appellate Court"

It may be noticed that in neither of these two decisions there was
..
c or could be. any occasion for interpreting the Explanation which ~ ..
came to be incorporated yea.rs later aad..these two decisions have1
mainly proceeded on the basis of merger of the decree passed by
the Trial Court with the decree of the Appellate Court.

D The words used in Explanation make it abundantly clear that
disposal of the appeal as contemplated in the Explanation is not
intended to .mean or imply disposal on .merits resulting in the
merger of the decree of the Trial Court with the decree, if any, of
the Appellate Court on the disposal of. the appeal. The Explanaiion
speaks of "the appeal has been disposed of. on any ground other
E
then the ground that the appellant has withdrawn the'appeal" and
these words make it abundantly clear that disposal of the appeat
may be. on any ground and the withdrawal of on appeal by the
appellant is also considered to be the disposal of the appeal on the
ground of withdrawal; and, ·the disposal of the appeal from the
F ex-parte decree on the ground of withdrawal of the appeal by the
appellant has only been exempted from the operation of the '
Explanation. !f the intention was that the Explanation would not./J.
be attracted and there would be no disposal of an appeal within· the' ·
meaning of the Explanation unless the appeal was. disposed of on
G merits resulting in the merger of the decree of the Trial Court with
the decree of the Appellate Court, it would not have been neces-
sary to provide specifically that the disposal of an appeal on the
ground of withdrawal would be exempt; because the disposal of an
appeal o.n the groµnd of withdrawal ~ould ·not be disposal of the
H appeal within the meaning of the Explanation, as on the withdrawal
. of an appeal there is no decisio.n on merits and there is no merger•
of the decree with any decree of the Appellate Court. The legisla-
RA'.Nl CHO\)DllURY v. SUMJ ilT SINGH (Pathak, J.) ~91

ture could also have simply provided in the Exr.lanation for the
A
disposal of an appeal on merits and it would not have been neces'
.,,sary to use the other weirds, "on the disposal of an appeal on any
ground ·other than the ground that the appellant has withdrawn the
appeal. The words used, "disposal of the appeal on any ·ground
other than the ground that the appellant has withdrawn the appeal" B
will undoubtedly attract within its ambit the disposal of an appeal
on the ground of the same_ being dismissed for non-prosecution,
though in the case of.such disposal of the appeal there will be no
effective adjudication of the appeal ori merits and the disposal of
~the appeal may not have the effect of the decree of the Trial Court
appealed against being merged with ·any decree of the Appellate
-,_-court on the disposal of the appeal. ·
c
'·

The disposal of an appeal on the ground. of limitation may or
} may not be adjudication on the merits of the appeal, depending on
the particular facts and circumstances of ~he case and may or may
D
not result in the merger of the decree of the Trial Court with the
decree, if any, of the appellate Court; but there cannot be any
manner- of doubt that when an appeal from the ex-parte decree
is dismissed on the ground of limitation, the appeal is disposed of
on any ground other than the ground that .the appellant has with-
drawn the appeal. As the dismissal of the ·appeal on the ground E
\.of limitation results in the disposal of the appeal on any ground
· othec than the ground of the withdrawal of the appeal by the
appellant, the Explanation is attracted, and the application for
setting aside the ex-parte· decree becomes in-competent after the
disposal of the appeal and cannot be eniertained.
F
As in ou.r view, the application for setting aside the ex-parte
decree does not lie and cannot be entertained, in view· of the provi-
• sions contained in the Explanation, it does not become necessary
for us to go into the merits of the application to consider whether
sufficient caus~ had been shown by the respondent for his non- G
appearance at the' hearing.at the date fixed and also for not pre-
. ferring the application within the time prescribed.

The appeal, therefore, succeeds. The judgment and order
pas.sed by the High Court are set aside and the ex-parte decree
H
•

SUPREMB COURT kEl>OkTS (1983J J S.C.R.
A
passed in favour of the appellant on 6.12.1979 is restored. In the
facts and circumstances of this case, we do not propose to make
any order for costs.

B S.R. Appeal allowed.

·1.
. . I

;

'·

'.

. ·•
;