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Issues: Whether dismissal of an appeal against an ex parte decree as barred by limitation attracts the Explanation to Order IX Rule 13 of the Code of Civil Procedure and bars an application to set aside the ex parte decree.
Analysis: The Explanation to Order IX Rule 13 was enacted to prevent a defendant from pursuing two parallel remedies against the same ex parte decree. Its language is broad: once an appeal against an ex parte decree has been disposed of on any ground other than withdrawal by the appellant, no application under Order IX Rule 13 lies. The disposal contemplated by the Explanation is not confined to a decision on merits or to cases where the trial decree merges in an appellate decree. An appeal dismissed as time-barred is still an appeal in law and its dismissal is a disposal of the appeal. The doctrine of merger, therefore, does not limit the operation of the Explanation where the appeal has been disposed of on a ground other than withdrawal.
Conclusion: The dismissal of the appeal as barred by limitation attracted the Explanation to Order IX Rule 13 and rendered the application to set aside the ex parte decree not maintainable. The ex parte decree was restored in favour of the appellant.
Ratio Decidendi: For the purpose of the Explanation to Order IX Rule 13 of the Code of Civil Procedure, an appeal against an ex parte decree is treated as disposed of if it is dismissed on any ground other than withdrawal, including dismissal as time-barred, and in such a case an application to set aside the ex parte decree does not lie.
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