Order IX Rule 13 bar applies when an ex parte decree appeal is dismissed for default or limitation, not withdrawn.

An application under Order IX Rule 13 CPC to set aside an ex parte decree is barred once an appeal against that decree has been filed and disposed of otherwise than by withdrawal. An appeal accompanied by a delay-condonation request remains an appeal in law, so dismissal for default or as time-barred still triggers the statutory bar. The absence of merger or a decision on merits does not avoid the explanation to Order IX Rule 13, because the provision is intended to confine the defendant to one remedy against the ex parte decree and prevent parallel proceedings. The application was therefore not maintainable.

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Issues: Whether an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside an ex parte decree is barred when an appeal against that decree was filed but later dismissed for default or as time-barred and was not withdrawn.

Analysis: The explanation to Order IX Rule 13 bars the application whenever there has been an appeal against the ex parte decree and the appeal has been disposed of on any ground other than withdrawal. An appeal filed with a delay-condonation application remains an appeal in law, and its dismissal for default or as barred by limitation is still a disposal of the appeal. The legislative object is to confine the defendant to one course of action and prevent parallel or successive remedies against the ex parte decree. The absence of merger or the fact that the appeal was not decided on merits does not take the case outside the statutory bar.

Conclusion: The application under Order IX Rule 13 was not maintainable and was rightly rejected.

Ratio Decidendi: For the purpose of the explanation to Order IX Rule 13 of the Code of Civil Procedure, 1908, an appeal against an ex parte decree that is disposed of for default or as time-barred, and not withdrawn, attracts the statutory bar against a subsequent application to set aside the ex parte decree.

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