Maintainability of revision petition barred where an appeal lay against refusal to condone delay in Order IX Rule 13 proceedings.

A Civil Revision Petition under Section 115 CPC was not maintainable where an express appellate remedy existed against the order dismissing the application for condonation of delay in an Order IX Rule 13 CPC proceeding. An order rejecting relief under Order IX Rule 13 is appealable under Order XLIII Rule 1(d), and the concurrent remedy under Order IX Rule 13 and Section 96(2) does not permit revision when appeal lies. As the challenge was to refusal of condonation of delay and the consequent refusal to set aside the ex parte decree, the proper remedy was an appeal. The High Court's order was set aside, with liberty to pursue the appeal.

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Issues: Whether a Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 was maintainable against an order dismissing an application for condonation of delay in filing an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, where an appeal lay under Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908.

Analysis: An order rejecting an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 is appealable under Order XLIII Rule 1(d). The remedy under Order IX Rule 13 and the remedy of appeal against an ex parte decree under Section 96(2) are concurrent remedies, but where an express appellate remedy exists, revision under Section 115 cannot be invoked. Since the challenge before the High Court was to an order refusing condonation of delay and, consequentially, refusing to set aside the ex parte decree, the proper remedy was an appeal and not a revision.

Conclusion: The Civil Revision Petition was not maintainable, and the High Court's order was set aside; liberty was reserved to pursue an appeal under Order XLIII Rule 1(d).

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