Ex parte decree appeals remain maintainable, and bona fide Order IX Rule 13 proceedings may justify condonation of delay.

A defendant against whom an ex parte decree is passed retains a statutory right to file a first appeal under Section 96(2) of the Code of Civil Procedure, and dismissal of an Order IX Rule 13 application does not extinguish that right. Time spent bona fide in proceedings to set aside the decree may constitute sufficient cause under Section 5 of the Limitation Act for condoning delay in filing the appeal, especially where the facts show diligence rather than dilatory conduct. On the facts stated, the delay was condoned and the first appeal was directed to proceed on merits.

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Issues: (i) Whether a first appeal under Section 96(2) of the Code of Civil Procedure, 1908 is maintainable after dismissal of an application under Order IX Rule 13 of the Code of Civil Procedure, 1908; (ii) Whether the time spent in proceedings to set aside the ex parte decree can constitute sufficient cause under Section 5 of the Limitation Act, 1908 for condoning delay in filing the first appeal.

Issue (i): Whether a first appeal under Section 96(2) of the Code of Civil Procedure, 1908 is maintainable after dismissal of an application under Order IX Rule 13 of the Code of Civil Procedure, 1908.

Analysis: The remedies against an ex parte decree are distinct: an application under Order IX Rule 13 tests service of summons and sufficient cause for non-appearance, while a first appeal under Section 96(2) is a statutory challenge to the decree on merits. The dismissal of an Order IX Rule 13 application does not, by itself, extinguish the statutory right of appeal. However, the later appeal may still be scrutinised on the question of delay and bona fides.

Conclusion: The first appeal remained maintainable notwithstanding the earlier dismissal of the Order IX Rule 13 proceedings.

Issue (ii): Whether the time spent in proceedings to set aside the ex parte decree can constitute sufficient cause under Section 5 of the Limitation Act, 1908 for condoning delay in filing the first appeal.

Analysis: The Court held that the issue depends on the facts and circumstances of each case. Where the defendant bona fide pursues the remedy under Order IX Rule 13, the period spent in such proceedings may be considered for condonation so that the statutory right of appeal is not defeated. The Court found that the appellant had pursued the earlier proceedings and had also made a substantial deposit, showing bona fides, and therefore deserved an opportunity to contest the suit on merits.

Conclusion: The delay was condonable and was directed to be condoned on deposit of the balance amount ordered by the Court.

Final Conclusion: The appeal was allowed, the High Court's refusal to condone delay was set aside, and the first appeal was directed to be taken on file and proceeded with in accordance with law.

Ratio Decidendi: A defendant against whom an ex parte decree is passed retains a statutory right to file a first appeal under Section 96(2), and delay in doing so may be condoned where the prior pursuit of Order IX Rule 13 proceedings was bona fide and the facts do not show dilatory tactics.

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