Stay of appeal against ex parte decree justified while Order 9 Rule 13 application remains pending

Where an application under Order 9 Rule 13 CPC challenging an ex parte decree is pending, the appeal against the same decree may be stayed because the Explanation to that provision bars the application once the appeal is disposed of. If the appeal proceeds first, the pending application can become infructuous, so staying the appeal preserves the statutory remedy. The court also noted that the parties' litigation conduct may be considered on equitable grounds, but the legal position favoured a stay. The impugned refusal to stay was therefore unsustainable, and the appellate proceedings were stayed pending decision of the Order 9 Rule 13 application.

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Issues: (i) Whether proceedings in the appeal against an ex parte decree ought to be stayed while an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 is pending, having regard to the Explanation to that provision.

Analysis: A defendant who has suffered an ex parte decree may pursue both remedies simultaneously, namely an application under Order 9 Rule 13 and an appeal under Section 96 of the Code of Civil Procedure, 1908. The Explanation to Order 9 Rule 13 bars the application only after the appeal against the ex parte decree has been disposed of. If the appeal is allowed to proceed and is decided first, the pending application under Order 9 Rule 13 may become infructuous. The Court held that this legal position justified staying the appellate proceedings, though the petitioners' conduct in the litigation was a relevant equitable consideration.

Conclusion: The stay of the appellate proceedings was warranted and the impugned order refusing stay could not be sustained.

Final Conclusion: The writ petition succeeded, the appellate order was set aside, and the appeal was stayed until decision of the application under Order 9 Rule 13, with further conditional directions regarding possession.

Ratio Decidendi: Where an application under Order 9 Rule 13 is pending, the appeal against the same ex parte decree may be stayed because disposal of the appeal can render the application under Order 9 Rule 13 unenforceable or infructuous under the statutory bar in its Explanation.

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