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PETITIONER: RANI CHOUDHURY

       Vs.

RESPONDENT: LT. COL. SURAJ JIT CHOUDHURY

DATE OF JUDGMENT24/08/1982

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. SEN, AMARENDRA NATH (J)

CITATION:  1982 AIR 1397            1983 SCR  (1) 372  1982 SCC  (2) 596        1982 SCALE  (1)657

ACT:      Interpretation of "Explanation" in a statute-Explained.      Maintainability of  an application  under  Rule  13  of order  lX,  when  an  application  under  section  96  Civil Procedure Code  with an  application under  section 5 of the Limitation Act has been dismissed-Scope of, Rule 13 of order IX, C.P.C.-Words  & Phrases-"on  any ground  other than  the ground that the appellant has withdrawn the appeal", meaning of.

HEADNOTE:      The appellant  wife filed on 1.9.1979, a petition under section 13 of the Hindu Marriage Act, against the respondent for dissolution  of her  marriage with  him and for a decree for  divorce.  The  next  date  of  hearing  was  fixed  for 6.12.1979.  On   10.11.1979,  the   respondent  husband  had addressed a  letter to the court requesting the court for an adjournment of  the case  fixed for  6.12.1979 on the ground that because  of special assignment it would not be possible for hi to be present in Court on that day. On that date, the court refused  to grant  the adjournment  and passed  an ex- parte decree  in favour  of the  appellant.  The  respondent husband, thereafter  preferred an appeal under section 96 of the Civil  Procedure Code  before the  High  Court  with  an application under section 5 of the Limitation Act to condone the  delay   in  filing.   The  High   Court  dismissed  the condonation application  as well  as the  appeal. Thereafter the  respondent  husband  moved  the  Trial  Court  with  an application under  Rule 13  of order  IX with an application under section 5 of the Limitation Act. Both the applications were dismissed.  The respondent husband moved the High Court against the  said orders  of dismissal  which  was  accepted rejecting the  contention of  the appellant  wife  that  the newly added  Explanation to  Rule 13 of order IX C.P.C. is a bar to  the maintainability  of the application itself filed by the  respondent husband under that Rule. Hence the appeal by the  appellant wife, after obtaining special leave of the Court.      Allowing the appeal the Court, ^      HELD: Per Pathak, J. (Concurring with A.N. Sen, J.)      1.  No   doubt  the   provision  is   described  as  an

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’Explanation’, but  it is  not the  rubric which  decisively defines the true nature of a statutory provision. Its true 373 nature must be determined from the content of the provision, its import  gathered from  the language  employed,  and  the language construed in the context in which the provision has been enacted.  What was  the law  before the amendment; what was the  mischief and  defect for  which  the  law  did  not provide, what  remedy has  Parliament resolved and appointed to cure  the mischief,  and the  true reason  of the remedy. [376 E-G, 377 A-B]      Rule in Heydon’s case, 76 English Reports 637; Swantraj  & Ors. v. State of Maharashtra [1974] 3 SCR 287, followed.      2:1. The  Code of Civil Procedure (Amendment) Act, 1976 was  enacted  with  the  avowed  purpose  of  abridging  and simplifying the  procedural law.  Prior to  it  a  defendant burdened by  an ex-parte  decree could  apply to  the  trial court under Rule 13 of order IX C.P.C. for setting aside the decree. He  could also  appeal under  section 96 against the decree. The  mere filing of the appeal did not take away the jurisdiction of  the trial court to entertain and dispose of application for  setting aside  the ex-parte  decree. It was where the  appeal was  disposed of, and the appellate decree superseded the  trial court  decree by reversing, confirming or varying  it that the trial court could not proceed to set aside its  ex-parte decree.  For the  trial court decree was said to  have merged with the appellate decree. Prior to the Amendment Act,  the courts  were open  to a  duplication  of proceedings, and  although the  immediate relief  claimed in the two  proceedings was not identical both ultimately aimed at a  redecision on  the merits.  The  earlier  disposal  of either resulted  in  the  other  becoming  infructuous.  The plaintiff, therefore,  was in  the unfortunate  position  of being   dragged   through   two   courts   in   simultaneous proceedings. [376 A-C, 377 C-D]      2:2. Public  time and private convenience and money was sought to  be saved by enacting the Explanation. By enacting the Explanation, Parliament left it open to the defendant to apply under  Rule 13  of order  IX for  setting aside an ex- parte decree  only if  the defendant had opted not to appeal against the  ex parte  decree or,  in the  case where he had preferred an  appeal, the  appeal had been withdrawn by him. The withdrawal  of the appeal was tantamount to effacing it. It obliged  the defendent  to decide whether he would prefer an adjudication  by the appellate court on the merits of the decree or have the decree set aside by the trial court under Rule 13 of order IX. The legislative attempt incorporated in the Explanation  was to  discourage a  two-pronged attack on the decree  and to  confine the defendant to a single course of action.  If he  did not withdraw the appeal filed by him, but allowed  the appeal  to be  disposed  of  on  any  other ground, he  was denied  the right  to apply  under r.  13 of order IX. The disposal of the appeal on any ground whatever, apart from the withdrawal, constituted sufficient reason for bringing the ban into operation. [377 D-G, 378 A]      2:3. In  the present  case, the appeal was dismissed as barred by  limitation and the order was one disposing of the appeal on any other ground. [378 A]      M/s. Mela  Ram &  Dons v.  Commissioner of  lncome-tax, [1956] S.C.R. 166, followed. 374 Per Amarendra Nath Sen, J.      1:1. A  proper interpretation of the Explanation, makes it clear  that where there has been an appeal against an ex- parte decree  and the  appeal has  not been withdrawn by the

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appellant  and   has  been   disposed  of  any  ground,  the application under  Rule 13  of order IX of the Code of Civil Procedure will not lie and cannot be entertained. [384 G-H]      2:2. The  words used  in the  Explanation are clear and unambiguous. The  language used  in the Explanation makes it clear that  the withdrawal of the appeal is considered to be disposal of  the appeal, as contemplated by the Explanation. Though an  appeal may  be disposed  of on very many grounds, the Legislature  has  thought  it  fit  to  provide  in  the Explanation that  only when  an appeal  against an  ex-parte decree is  disposed of  on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of an  application under  order IX,  Rule 13 of the Code for setting aside  the  ex-parte  decree  will  not  apply.  The Legislature must  be presumed to know that there are various ways of disposal of an appeal and that in all other cases of the disposal  of the  appeal on  any other  ground than  the ground of  withdrawal of  the appeal, there will be a bar to the maintainability  of the application under order IX, Rule 13 and  no application  will lie  for setting  aside the ex- parte decree.  Withdrawal of appeal by an appellant does not result in  any  adjudication  on  merits.  Even,  then,  the withdrawal of an appeal is still considered to be a disposal of  the   appeal,  but   not  creating   a   bar   for   the maintainability of  the application  under order  IX Rule 13 [383 E, 384 B-G]      1:3.  In  the  instant  case,  the  appellant  had  not withdrawn the  appeal. His  application for  condonation  of delay was  rejected by  the High  Court and  therefore,  the appeal was dismissed on the ground of limitation. The appeal filed against  the ex-parte  decree was, therefore, disposed of on  grounds other  than the  ground of  withdrawal of the appeal. The  application under  order IX, Rule 13, after the disposal  of  the  appeal,  therefore,  became  incompetent. [385A-B]      2:1.  The   words  used  in  the  Explanation  make  it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal in merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of  the appeal.  The  Explanation  speaks  of  "the appeal has  been disposed  of an  any ground  other than the ground that  the appellant  has withdrawn  the  appeal"  and these words  make it  abundantly clear  that disposal of the appeal by  the  appellant  is  also  considered  to  be  the disposal of the appeal on the ground of withdrawal; and, the disposal of  the appeal  from the  ex-parte  decree  on  the ground of withdrawal of the appeal by the appellant has only been exempted  from the operation of the Explanation. If the intention was  that the  Explanation would  not be attracted and there  would be  no disposal  of an  appeal  within  the meaning of the Explanation unless the appeal was disposed of on merits  resulting in  the merger  of the  decrees of  the Trial Court with the decree of the 375 the Appellate  Court, it  would not  have been  necessary to provide specifically  that the  disposal of an appeal on the ground of  withdrawal would  be exempt, because the disposal of an  appeal on  the ground  of  withdrawal  would  not  be disposal  of   the  appeal   within  the   meaning  of   the Explanation, as  on the  withdrawal of an appeal there is no decision on merits and there is no merger of the decree with any decree  of the  Appellate Court.  The legislature  could also  have  simply  provided  in  the  Explanation  for  the disposal of  an appeal  on merits and it would not have been

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necessary to  use the  other words,  "on the  disposal of an appeal  on  any  ground  other  than  the  ground  that  the appellant  has   withdrawn  the   appeal.  The  words  used, "disposal of  the appeal on any ground other than the ground that  the   appellant  has   withdrawn  the   appeal"   will undoubtedly attract  within its  ambit the  disposal  of  an appeal on  the ground  of the  same being dismissed for non- prosecution, though  in the  case of  such disposal  of  the appeal there will be no effective adjudication of the appeal on merits  and the  disposal of  the appeal may not have the effect of  the decree  of the  trial court  appealed against being merged  with any  decree of the Appellate Court on the disposal of the appeal. [390D-H, 391 A-C]      2:2. The  disposal  of  an  appeal  on  the  ground  of limitation may  or may  not be adjudication on the merits of the  appeal,   depending  on   the  particular   facts   and circumstances of  the case  and may or may not result in the merger of  the decree of the Trial Court with the decree, if any, of  the appellate Court; but there cannot be any manner of doubt  that when  an appeal  from the  ex-parte decree is dismissed  on  the  ground  of  limitation,  the  appeal  is disposed of  on any  ground other  than the  ground that the appellant has  withdrawn the appeal. As the dismissal of the appeal on  the ground  of limitation results in the disposal of the  appeal on  any ground  other than  the ground of the withdrawal of  the appeal  by the appellant, the Explanation is attracted,  and the application for setting aside the ex- parte decree  becomes incompetent  after the disposal of the appeal and cannot be entertained. [391 C-F]      Ckandri Abdul  Majid v.  Jawahar Lal,  A.l.R. 1914 P.C. 66: Kalumuddin Ahmad v. Esabakuddin & Ors., A.I.R. 1924 Cal. 830; discussed and held inapplicable.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5 (N) of 1982.      (From the  Judgment and order dated the 14th September, 1981 of  the High Court of Delhi at New Delhi in F.A. No. 29 of 1981)      Soli J.  Sorabjee, A.  Minocha, Mrs. Veerna Minocha and Dr. Roxna Swamy, for the Appellant.      Rameshwar Nath for the Respondent.      The Judgment of the Court was delivered by 376      PATHAK, J.  I agree that the appeal must succeed.      The real  question is  whether the Explanation(l) to r. 13 of  O. 9  of the  Code of Civil Procedure bars the appeal filed by  the respondent  against the  ex parte  decree. The Explanation was  enacted by  the  Code  of  Civil  Procedure (Amendment) Act,  1976 with  effect from  February 1,  1977. Prior to  its enactment, a defendant burdened by an ex parte decree could  apply to  the trial  court under r. 13 of O. 9 for setting  aside the decree. He could also appeal under s. 96 against the decree. The mere filing of the appeal did not take away  the jurisdiction  of the trial court to entertain and dispose  of the  application for  setting aside  the  ex parte decree.  It was  where the appeal was disposed of, and the appellate  decree, superseded  the trial court decree by reversing, confirming  or varying  it that  the trial  court could not  proceed to set aside its ex parte decree. For the trial  court  decree  was  said  to  have  merged  with  the appellate decree.  There are of course cases where the trial court decree  does not merge with the appellate decree. Such

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instances arise  when the appeal is dismissed in default, or where it  is dismissed  as having  abated by  reason of  the omission   of   the   appellant   to   implead   the   legal representatives of  a deceased  respondent or  where  it  is dismissed as  barred by  limitation. So there a limited area where the  trial court decree merges in the appellate decree and when  that takes  place an  application before the trial court for setting aside the decree loses all meaning. It was a limited  area defined  by the operation of the doctrine of merger.  From   February  1,  1977  the  area  was  extended enormously.  With   the   Explanation   in   operation,   no application for  setting aside  an ex  parte decree  can lie where the  defendant has  filed an appeal and the appeal has been disposed  of on  any ground  other than the ground that the appeal has been withdrawn by the appellant. No doubt the provision described  as an  "Explanation", but  as  is  well known it is not the rubric which decisively defines the true nature of  a statutory  provision. Its  true nature  must be determined from  the content  of the  provision, its  import gathered  from  the  language  employed,  and  the  language construed in the context in which the 377 provision has  been enacted. In the present . case, the rule in Heydon’s  case,(l) approval  of and applied by this Court in Swantraj  & Ors.  v. State  of Maharashtra  (2) and  many other cases,  is attracted.  What was  the  law  before  the amendment, what  was the  mischief and  defect for which the law did not provide, what remedy has Parliament resolved and appointed to  cure the  mischief, and the true reason of the remedy.      It has been observed earlier that a defendant intending to avoid  an ex  parte decree could apply to the trial court for setting  it aside  and could  ’also appeal to a superior court against  it. The  courts were open to a duplication of proceedings, and  although the  immediate relief  claimed in the two  proceedings was not identical both ultimately aimed at  a  redecision  on  the  merits.  Moreover,  on  the  two proceedings initiated  by  the  defendant,  the  application under r. 13 of O. 9 would subsequently become infructuous if the appeal  resulted in a decree superseding the trial court decree. It was also possible to envisage the appeal becoming infructuous if  the trial  court decree was set aside on the application under  r. 13  of O.  9  before  the  appeal  was disposed of.  The plaintiff  was in the unfortunate position of  being   dragged  through   two  courts  in  simultaneous proceedings. Public  time and  private convenience and money was sought to be saved by enacting the Explanation. The Code of Civil  Procedure (Amendment)  Act, 1976  was enacted with the  avowed   purpose  of   abridging  and  simplifying  the procedural law. By enacting the Explanation, Parliament left it open  to the  defendant to  apply under r. 13 of O. 9 for setting aside  an ex  parte decree only if the defendant had opted Dot  to appeal  against the ex parte decree or, in the case where  he had  preferred an appeal, the appeal had been withdrawn  by   him.  The   withdrawal  of  the  appeal  was tantamount to  effacing it.  It  obliged  the  defendant  to decide whether  he  would  prefer  an  adjudication  by  the appellate court  on the  merits of  the decree  or have  the decree set aside by the trial court under r. 13 of O. 9. The legislative attempt  incorporated in  the Explanation was to discourage a two-pronged attack on the decree and to confine the defendant  to a  single course  of action. If he did not withdraw the  appeal filed by him, but allowed the appeal to be disposed  of on any other ground, he was denied the right to

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378 apply under  r. 13 of O.9. The disposal of the appeal on any ground whatever,  apart  from  its  withdrawal,  constituted sufficient reason for bringing the ban into operation.      In the present case, the appeal was dismissed as barred by limitation.  That it  was an appeal even though barred by time is  clear from  M/s. Mela Ram & Sons v. Commissioner of Income-tax,(1) where  Venkataram Ayyar, J., speaking for the court, after referring to Nagendranath Dey v. Suresh Chandra Dey,(2) Raja Kulkarni and Ors. v. The State of Bombay(3) and Promotho Nath  Roy v.  W.A.  Lee(4)  held  that  "an  appeal presented out  of time is an appeal, and an order dismissing it as  time-barred is one passed in appeal." There can be no dispute then that in law what the respondent did was to file an appeal  and that  the order  dismissing it as time-barred was one disposing of the appeal.       Accordingly,  the appeal  is allowed, the judgment and order passed  by the  High Court  are set  aside and  the ex parte decree  passed in favour of the appellant is restored. There is no order as to costs.      AMARENDRA NATH  SEN, J.  Whether the  dismissal  of  an appeal against  an ex  parte decree  on the  ground that the appeal is  barred  by  limitation  attracts  the  provisions contained in  the Explanation  in O.  9. R.13 of the Code of Civil Procedure  and creates a bar to the maintainability of an application  under O.  9. rule  13 of  the Code  of Civil Procedure for  setting aside  the ex  parte decree,  is  the question which  falls for  determination in  this appeal  by special leave granted by this Court.      The question arises in the following circumstances:-      The appellant  filed a  petition against the respondent under S. 13 of the Hindu Marriage Act for the dissolution of her marriage  with respondent  and for  a decree of divorce. The said  petition was  filed by the appellant on 1.9.79 and the appellant obtained an ex- 379 parte decree  on 6-12-1979.  It appears that on 10-11-79 the respondent husband  had addressed  a  letter  to  the  Court requesting the Court for an adjournment of the case fixed on 6-12-1979 on  the ground  that because of special assignment it would  not be  possible for him to be present in Court on that day.  The Court  refused to grant an adjournment and on that date  an ex-parte  decree for  divorce  was  passed  in favour of the appellant. The respondent husband preferred an appeal against the ex-parte decree in the High Court. As the appeal had  been filed  in the  High Court  beyond time, the respondent husband  also made  an application  under S. 5 of the Limitation  Act for  condonation of  delay in filing the appeal. By  its judgment and order dated 17-3-1981, the High Court dismissed  the application  tor condonation  of delay, holding that  no sufficient  cause for  condonation had been made out. The High Court by the same order and Judgment also dismissed the  appeal holding-"the  appeal being  barred  by time is  dismissed". The  respondent  moved  an  application before the  Trial Court  under O.  3, rule 13 of the Code of Civil Procedure  for setting  aside the ex-parte decree. The respondent had  also moved  an application under S. 5 of the Limitation Act  for  condonation  of  delay  in  making  the application under O.9, rule 13 of the C.P. Code. The learned Trial Judge  held that no sufficient cause had been made out for condonation  of delay and in that view of the matter the learned Trial Judge dismissed both the applications. Against the order of the Trial Judge, the respondent filed an appeal in the  High Court.  The main contention of the husband, the appellant in the High Court, was that the Trial Court was in

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error in  coming to  the conclusion that no sufficient cause for condonation  of delay  had been  made out  and the Trial Court had  also erred  in not  setting  aside  the  ex-parte decree as  there was  sufficient cause for non-appearance of the husband  on the  date  fixed  for  the  hearing  of  the petition for  divorce. On behalf of the wife, the respondent in the  appeal before  the High Court, it was urged that the Trial Court  was clearly  right on  merits in  coming to the conclusion that  no sufficient  cause had  been made out for condonation of delay and for setting aside the decree and it was further  urged that  in view of the provisions contained in the  Explanation in order 9, rule 13 of the Code of Civil Procedure, the  application for  setting aside  the ex-parte decree was  not maintainable, as the appeal preferred by the husband  against   the  ex-parte  decree  had  already  been dismissed by  the High  Court. The  High Court  for  reasons recorded in its Judgment dated 14.9.1981 380 came to  the conclusion  that sufficient cause bad been made out by  the husband  for condonation  cf delay in presenting the application  under O.  9, rule  13 beyond the prescribed time, that sufficient cause had been made out by the husband for his  non-appearance at  the hearing  of the  petition on 6-12-1979 when  the ex-parte  decree for  divorce was passed and that the Explanation in order IX, rule 13 did not create any bar  to the  maintainability of  the  application  under order 9,  rule 13, as the appeal against the ex-parte decree had been  dismissed not  on merits  but  on  the  ground  of Limitation. The High Court held: "Thus I am of the view that the disposal  of an appeal against the ex-parte decree means disposal on  merits for  debarring the  defendant  applicant from filing  or continuing  an application for setting aside the ex-parte decree under order 9 rule 13 of the code. If an application for  condonation of  delay in  filing appeal has not been  accepted it  means no  appeal was preferred in law and dismissal  of appeal  as barred  by time  would  not  be disposal of  the appeal as contemplated under Explanation to order 9  rule 13  of the  Code. I,  therefore, hold that the appellant’s application  under order  9, rule 13 of the Code of Civil Procedure is maintainable".      Against the  Judgment and  order of the High Court this appeal has  been preferred  by the  wife with  special leave granted by this Court      The main  contention raised  on behalf of the appellant is that on a true interpretation of the Explanation in order 9, rule  13 of  the Code  of Civil Procedure the application for setting  aside the  ex-parte decree  must be  held to be incompetent and not maintainable. It has been urged that the High Court  erred in  holding that  the Explanation  did not impose any bar to the maintainability of an application in a case where  the appeal  is  not  dismissed  on  merits.  The argument it  that the  said interpretation by the High Court is wrong  and is  clearly unwarranted  by the plain language used in  the said  Section. It is urged that it is not right to hold  that when  an appeal  is filed  beyond time  and is dismissed on the ground of limitation, there is no appeal in the eye  of law  and therefore, no disposal, of an appeal as contemplated in  the Explanation.  The learned  counsel  has submitted that  the decisions  of the  Privy Council  in the case of  Chandri Abdul  Majid v.  Jawahar Lal (1) and of the Calcutta High      (I) AIR 1914 P. C. 66. 381 Court in  the case  of Kalumuddin Ahmed v. Esabakuddin & ors (l) are  of no  assistance in  interpreting  the  provisions

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contained in the Explanation in order 9, rule 13 of the Code of Civil Procedure.      The learned Counsel has further submitted that the High Court went  wrong in  interfering with  the findings  of the Trial Court  that no  sufficient cause had been made out for condonation of delay in filing an application under order 9, rule 13 of the Code and in any event there is no justifiable reason for  non-appearance of the respondent on the due date for the hearing of the matter.      On behalf  of the respondent-husband, it has been urged that on  a true  interpretation of the Explanation, the High Court has correctly held that the Explanation will not apply to a  case where  the appeal  preferred against  an ex-parte decree is  dismissed not  on merits  but on  the  ground  of limitation. It  is the  argument of the learned counsel that the Explanation will only apply when the appeal is dismissed on merits,  as in  such a case the decree of the Trial Court gets merged  with the  decree of  the  appellate  Court  and naturally the  trial Court loses its competence to set aside the ex-parte decree which was originally passed by the trial court, but  has subsequently  merged in the decree passed by the appellate  court. The  learned counsel  argues that  the Explanation seeks to embody the principle that when a decree of the  Trial  Court  gets  merged  in  the  decree  of  the appellate court,  the Trial  Court  loses  seisin  over  the matter and  becomes incompetent to deal with a decree of the appellate court.  It is  his argument that as in the instant case the  appeal was  dismissed on  the ground of limitation and not on merits, there is no question of any merger of the decree P of the trial court with any decree of the appellate court. He  argues that  an  appeal  preferred  beyond  time, unless delay  in filing  the  appeal  is  condoned,  becomes incompetent and  is indeed  no appeal  in the eye of law. He has placed  reliance on  the  two  decisions  of  the  Privy Council in  Chandri Abdul Majid (supra) and Kalimuddin Ahmed (supra), considered by the High Court in its judgment.      The learned  counsel further  argues that  in the facts and circumstances of this case, the High Court was perfectly justified in  holding that sufficient cause was made out for not making the appli- 382 cation under order 9, rule 13 within the time prescribed and for condoning  the delay  in making the application, and the High Court  was also  clearly justified  in  coming  to  the conclusion that  the respondent  husband  was  prevented  by sufficient cause  for not  being able  to appear on the date fixed for  hearing. He  submits that in any event this Court in this  appeal should  not interfere with these findings of the High Court in the larger interfere of the administration of justice  and this Court should not deprive the husband of the opportunity of contesting the claim of the wife.      The principal  question as  to whether  the application made by the husband for setting aside the ex-parte decree is competent or  not in view of the provisions contained in the Explanation in  O. 9, rule 13 of the Code of Civil Procedure turns on  a proper  interpretation of the Explanation. Order 9, rule 13 of the Code of Civil Procedure reads as follows:           "In any  case in which a decree is passed ex-parte      against a defendant, he may apply to the Court by which      the decree was passed for an order to set aside, and if      he satisfies  the Court  that the  summons was not duly      served, or  that he  was prevented  by  any  sufficient      cause from  appearing when  the suit  was called on for      hearing, the  Court shall  make an  order setting aside      the decree  as against him upon such terms as to costs,

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    payment into  Court or  otherwise as it thinks fit, and      shall appoint a day for Proceeding with the suit;           Provided that where the decree is of such a nature      that it  cannot be  set aside as against such defendant      only it  may be  set aside as against all or any of the      other defendants also:           Provided further  that no  court shall set aside a      decree passed  ex-parte merely on the ground that there      has been  an irregularity in the service of summons, if      it is  satisfied that  the defendant  had notice of the      date of  hearing and  had sufficient time to appear and      answer the plaintiff’s claim. 383           Explanation:-Where  there   has  been   an  appeal      against a  decree passed  ex-parte under this rule, and      the appeal  has been  disposed of  on any  ground other      than the  ground that  the appellant  has withdrawn the      appeal, no  application shall  lie under  this rule for      setting aside that ex-parte decree." Order 9, rule 13 makes provision for the setting aside of an ex-parte decree  against the  defendant. It  lays  down  the conditions and  also the  procedure for the setting aside of an ex-parte decree. The Explanation was introduced into this provision by  the Code  of Civil  Procedure (Amendment) Act, 1976 (Act  104 of  1976) and it has come into force from 1.2 1977. The  proceeding by  the wife was initiated on 1.9.1979 and the  ex-parte decree of divorce in her favour was passed on 6.12.1979.  The application  by the husband has been made for setting  aside this  ex-parte decree.  The  Explanation, therefore, operates;  the real question being whether in the facts and circumstances of this case, the bar created by the Explanation to  the setting  aside of  an ex-parte decree is attracted to the present application.      A plain  reading of  the Explanation  clearly indicates that if  any appeal  against an  ex-parte  decree  has  been disposed of  on any  ground other  than the  ground that the appellant has  withdrawn  the  appeal,  no  application  for setting aside  the ex-parte decree under order 9, rule 13 of the  Code  will  be  entertained.  The  words  used  in  the Explanation are  clear and unambiguous. The language used in the explanation  clearly suggests  that where there has been an appeal  against a  decree passed  ex-parte and the appeal has been  disposed of  on any  ground other  than the ground that the  appellant has withdrawn the appeal, no application shall lie  under order  9, rule  13 of  the Code for setting aside the  ex-parte decree.  An appeal may be disposed of on various grounds.  It may be disposed of after proper hearing on merits  and this is usually the normal way of disposal of an appeal.  An appeal  may  be  disposed  of  also  for  non prosecution thereof.  Though the  dismissal of  an appeal on the ground of non prosecution of the same is not disposal of the appeal  on merits,  yet the  dismissal of the appeal for non-prosecution results  in the  disposal thereof. An appeal may also  be dismissed  on  the  ground  of  limitation,  if condonation of  delay in filing the appeal is not allowed by the Court.  An appeal may also be liable to be dismissed for non compliance with any condition relating to 384 the filing  of the  appeal and  also for  other reasons.  An appellant is  also entitled  to withdraw  the appeal and the withdrawal of the appeal also results in the disposal of the appeal, though  in such  a case  no merits of the appeal are adjudicated upon. The language used in the Explanation makes it clear  that the  withdrawal of an appeal is considered to be  disposal   of  the   appeal,  as   contemplated  in  the

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Explanation. It is significant to note that though an appeal may be  disposed of on very many grounds the Legislature has thought it  fit to provide in the Explanation that only when an appeal  against an  ex-parte decree is disposed of on the ground that  the appellant has withdrawn the appeal, the bar created to the maintainability of an application under order 9, rule 13 of the Code for setting aside the ex-parte decree will not  apply. The  Legislature must  be presumed  to know that there  are various  ways of  disposal of an appeal. The Legislature has,  however, thought  it fit  to provide  that when an  appeal  has  been  preferred  against  an  ex-parte decree, the  disposal of  the appeal on any ground excepting the solitary  ground of disposal of the appeal by withdrawal of the  same by  the appellant,  will create  a bar  to  the maintainability of  an application under Order 9, rule 13 of the Code  of Civil  Procedure. By  specifically providing in the Explanation that the disposal of any appeal from the ex- parte decree on any ground other than the solitary ground of withdrawal of  the appeal  by the appellant, the legislative intent is  made manifestly  clear that in all other cases of the disposal  of the  appeal on  any other  ground than  the ground of  withdrawal of  the appeal, there will be a bar to the maintainability  of the  application under order 9, rule 13 and  no application  will lie  under order 9, rule 13 for the setting  aside of  an ex-parte  decree. Withdrawal of an appeal by  an appellant  does not result in any adjudication on merits.  Even then,  the withdrawal of an appeal is still considered to  be a disposal of the appeal; and the disposal of an appeal only on this ground of withdrawal of the appeal by the  appellant, it is made clear in the Explanation, will not create any bar to the maintainability of the application under order  9, rule 13 of the Code of Civil Procedure. On a proper interpretation  of the  explanation  we  are  of  the opinion that  where there  has been an appeal against an ex- parte decree  and the  appeal has  not been withdrawn by the appellant and  has been  disposed  of  on  any  ground,  the application under  order 9,  rule 13  of the  Code of  Civil Procedure will not lie and cannot be entertained. 385      In the  instant case,  an appeal  had  admittedly  been filed against  the ex-parte  decree. The  appeal was  beyond time. The  appellant  had  not  withdrawn  the  appeal.  The appellant had  filed an application for condonation of delay in preferring the appeal. The application for condonation of delay had been rejected by the Court and the appeal had been dismissed an  the ground of limitation. The dismissal of the appeal on  the ground  of limitation resulted in disposal of the appeal  though not  on merits.  The appeal filed against the ex-parte  decree was,  therefore, disposed of on grounds other than  the ground  that the appellant had withdrawn the appeal. The  application under  order 9,  rule 13  after the disposal of  the appeal,  therefore, became  incompetent  in view of  the provisions  contained in  the  Explanation  and could not  therefore be  entertained by  the Court. The view expressed by  the High  Court must, therefore. be held to be erroneous.      In support  of the  view taken  by the  High Court, the High Court  referred to  and relied  on the  decision of the Privy Council  in the  case of  Chandri Abdul Majid (supra). The decision  of the  Privy Council,  in our opinion, has no material bearing  on the  question involved  in the  present appeal. In  the case before the Privy. Council, the Judicial Committee  was   concerned  with  the  question  as  to  the commencement of  the period  of limitation  in respect  of a decree passed by the Trial Court, affirmed by the High Court

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on appeal  and a  further  appeal  therefrom  to  the  Privy Council  was   dismissed  by  the  Privy  Council  for  non- prosecution of  the appeal.  The appellant  before the Privy Council  was   in  the  position  of  a  mortgagor  and  the Respondents  of   mortgagees  under  a  mortgage  dated  3rd September, 1868.  In 1889  a suit  was commenced  before the Subordinate Judge  of Allahabad to enforce that mortgage and on the  12th May,  1890, a  decree was passed by him for the sale of  the property  unless payment  was made on or before the 12th August, 1890.   An appeal  was  brought  from  that decree to  the High  Court and  on the  8th April, 1893 that appeal was dismissed and the decree of the Subordinate Judge was confirmed. The mortgagor obtained leave to appeal to the Judicial Committee  but did not prosecute his appeal; and on the 13th  May, 1901,  the appeal  was dismissed  for want of prosecution. The Mortgagor decree-holder made an application to the Subordinate Judge on the 11th June, 1909 for an order absolute to  sell the  mortgaged properties; it appears that an 386 order had  been ’made  on the said application for execution in favour  of the  decree-holder and ultimately the validity of the  execution proceedings  went to the Privy Council for consideration. The  main argument  before the  Privy Council was that the decree which was sought to be enforced had been constructively turned  into a decree of the Privy Council by virtue of  the dismissal  of the appeal by the Privy Council on 13.5.1901  for non-prosecution  of  the  appeal  and  the period  of   limitation,  therefore,   was  12   years  from 13.5.1901. The  Judicial Committee  rejected this contention holding that  the order  dismissing the  appeal for  want of prosecution did  not deal  judicially with the matter of the suit and  could in no sense be regarded as an order adopting or confirming  the  decision  appealed  from.  The  Judicial Committee held  that as  there was no decree by the Judicial Committee adopting or confirming the decision appealed from, and as  there was never any stay of the decree passed by the High Court  affirming the  decree of  the Subordinate-Judge, the period  of limitation  will run  from the  date  of  the passing of  the decree by the High Court and the period will be three  years from  the date  of the decree! passed by the High Court.  The Privy  Council allowed  the appeal  holding that  the  application  dated  11.6.1909  for  sale  of  the mortgaged  properties   was  barred   by  limitation.  While considering the  question whether  the period  of limitation should be  effective from  the date  of the dismissal of the appeal  by   the  Judicial  Committee  for  non  prosecution thereof, the  Judicial  Committee  had  made  the  following observations:           "The order  dismissing  the  appeal  for  want  of      prosecution did  not deal judicially with the matter of      the suit  and could in no sense be regarded as an order      adopting or  confirming the  decision appealed from. It      merely recognised  authoritatively that  the  appellant      had not  complied with  the conditions  under which the      appeal was  open to  him, and  that therefore he was in      the same position as if he had not appealed at all."      This position was made abundantly clear by the Judicial Committee by the observations immediately following:           "To put  it shortly, the only decree for sale that      exists is  the decree,  dated 8th April, 1893, and that      is a decree of the High Court of Allahabad." 387      In the case of Kalimuddin Ahamed v. Esabakuddin and ors the material facts were: -

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    A partition  suit was  instituted on 20.12.1918 against several defendants, among whom the appellant before the High Court was  No. 4.  Two of  the defendants contested the suit and on  22.9.1919 a  preliminary decree  from partition  was made on  contest against  two of the defendants and ex-parte against the  others. The  appellant did not appear at all in the first  Court and  he was  one of  the defendants against whom the  decree was  made ex-parte. On 17.12.1919 the first defendant alone  preferred an  appeal against  the decree to the High  Court and on 20.12.1919 the appellant presented an application to the Trial Court under order 9, rule 13 of the Code of  Civil Procedure.  This application was kept pending until after  the disposal  of the  appeal preferred  by  the first defendant.  One of the respondents in the appeal filed by the  first defendant  died and  as the  appellant did not take proper  steps to  bring the  heirs on  the record,  the appeal was  dismissed as  against them  and then against the others it  was held  that in the absence of the heirs of the deceased respondent  the appeal  could not  proceed and  the appeal  was  accordingly  dismissed  on  5th  January  1922. Thereafter the application of the appellant under 9, rule 13 of Code  of Civil  Procedure came  up for hearing and on 8th April 1922  a petition  of compromise  between the plaintiff and the  appellant was presented and in accordance therewith the Court  ordered that  the suit  should be restored to its original number  as against  the applicant who was defendant No. 4  in the  suit in  regard to  three only  of the  plots mentioned in  the plaint.  In making  this order,  the Court proceeded on  the compromise alone without any enquiry as to the causes which prevented defendant No. 4 from appearing at the trial.  In July.  1922, a  different Judge was presiding over the  Court and on 5th July, 1922, he expressed doubt as to the  legality of  the order  passed by his predecessor on 8th April, 1922 and after hearing the arguments he delivered his judgment on 7th July, 1922 holding that the order passed by his  predecessor on  8th April,  1922  was  made  without jurisdiction because there was no longer any ex-parte decree over which  the Court  had control  and the said order was a nullity and  utterly void  so that  no proceeding  to set it aside were necessary and the fact of the order being made on consent as against the plaintiff could not convert it into a valid order.  Against this judgement, an appeal was filed in the High Court. A division Bench of 388 the Calcutta  High Court  treated the  appeal as  a revision petition under  S. 115 and set aside the order, holding that when an  ex-parte decree  was appealed  against and  also an application to  set  aside  was  made  but  the  appeal  was dismissed  for  not  bringing  the  representatives  of  the deceased respondent  on record,  the ex-parte decree did not merge in the appellate decree and an order passed on consent on the  application to  set aside the decree was not without jurisdiction. The  decision of  the  Judicial  Committee  in Abdul  Majid’s  case  was  also  considered  in  this  case. Walmsley, J. held at p1832 as follows :           "The order  of this Court may be a decree, without      being such  a decree  as to supersede the decree of the      lower Court.  All that  this  Court  decided  was  that      having regard  to the  nature of  the appeal, a certain      defendant was  a  necessary  party,  and  that  in  the      absence of  that defendant,  .  or  on  her  death  her      representatives, the  appeal could  not proceed. On the      merits of  the appeal  in other  respects there  was no      adjudication, but  on the contrary an express - refusal      to adjudicate.  Consequently it  is  of  no  importance

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    whether the  order did  or did  not amount to a decree.      What .  is of importance is that it was not a decree in      which that of the lower Court was merged:" Mukherjee, J., the other learned Judge on the Bench observed at p. 834 :           "Now the  consideration  of  the  question  as  to      whether the  learned Subordinate Judge had jurisdiction      to pass  the order  of the  8th April,  1922 involves a      consideration of  the following  questions (a)  whether      the order of this Court passed on the 5th January 1922,      amounted to  a decree  or not,  (b) if it was a decree,      whether the  ex-parte decree  can be  held  to  have  a      merged into  it, (c)  whether the  learned  Subordinate      Judge had jurisdiction to set aside the ex-parte decree      and restore  the suit,  and (d)  whether his  successor      could declare  or was  right in declaring the aforesaid      order a nullity.           As to  (a): The definition of the word ’decree’ in      the Code  of Civil  Procedure, in so far as it purports      to be a 389      definition at  all, lays  down the  following essential      and distinguishing  elements viz.,  that  the  decision      must have  been expressed  in a suit, that the decision      must have been passed on the rights of the parties with      regard lo  all or  any of the matters in controversy in      the  suit,   that  the   decision  must  be  one  which      conclusively  determines  those  rights.  Then  certain      orders  which   may  or   may  not  satisfy  the  above      requirements  are   either  expressly  included  in  or      excluded from  the  definition.  The  whole  object  of      defining a  ’decree’ in  the said Code appears to be to      classify orders in order to determine whether an appeal      or in  certain cases  a second  appeal lies  therefrom.      Apart from  that object  . this  definition  is  of  no      value. I  am not  prepared to  accept the contention of      the respondent that because an order rejecting a plaint      is a decree, an order dismissed an appeal on the ground      that it  was improperly  constituted is by mere analogy      to be  treated as  a decree.  I am  unable to reconcile      either in principle or in theory why an order rejecting      a plaint  should stand  on  a  different  footing  from      orders of  dismissal for  default, and  yet  one  is  a      decree and  the other  is not. It is true that an order      of rejection of a plaint has been expressly included in      the definition  of a  ’decree’ but  the legislature has      included it  and no analogy can be drawn therefrom. The      question whether  an adjudication is an order or decree      is to  be tested  not by general principles, but by the      expressions of  the Code,  and those  words are  to  be      construed in their plain and obvious sense."      The learned Judge further held at p. 835:-           "Here the  position was that the plaintiff had got      a decree  as against  the defendants  in respect  of  a      certain  share;   one  of   the  defendants  viz.,  the      defendant No.  1, had  preferred the  appeal; excepting      the question  as to whether the appeal was maintainable      in  the  absence  of  the  minors,  the  heirs  of  the      defendants No.  6, no other question was gone into, and      in fact  none could  be litigated,  and  that  is  more      important is what the rights of the defendant 390      No. 4  were as against the plaintiff or whether the ex-      parte decree  passed against  him was  a good  or valid      one, or  whether it should stand at all, could scarcely

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    be determined in that appeal.           There is  no authority  for the  proposition  that      under circumstances  such as these, the ex-parte decree      can possibly  be said  to have  merged in the decree by      passed the appellate Court." It may  be noticed  that in  neither of  these two decisions there was  or could  be any  occasion for  interpreting  the Explanation which  came to  be incorporated  years later and these two  decisions have  mainly proceeded  on the basis of merger of  the decree  passed by  the Trial  Court with  the decree of the Appellate Court.      The words  used in Explanation make it abundantly clear that  disposal   of  the   appeal  as  contemplated  in  the Explanation is  not intended  to mean  or imply  disposal on merits resulting  in the  merger of  the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of  the appeal.  The  Explanation  speaks  of  "the appeal has  been disposed  of on  any ground  other then the ground that  the appellant  has withdrawn  the  appeal"  and these words  make it  abundantly clear  that disposal of the appeal may  be on any ground and the withdrawal of on appeal by the  appellant is  also considered  to be the disposal of the appeal on the ground of withdrawal, and, the disposal of the appeal  from  the  ex-parte  decree  on  the  ground  of withdrawal of  the appeal  by the  appellant has  only  been exempted from  the operation  of  the  Explanation.  If  the intention was  that the  Explanation would  not be attracted and there  would be  no disposal  of an  appeal  within  the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decree of the Trial Court with  the decree  of the Appellate Court, it would not have  been   necessary  to  provide  specifically  that  the disposal of  an appeal  on the ground of withdrawal would be exempt, because  the disposal  of an appeal on the ground of withdrawal would  not be  disposal of  the appeal within the meaning of  the Explanation,  as on  the  withdrawal  of  an appeal there is no decision on merits and there is no merger of the  decree with  any decree  of the Appellate Court. The legisla- 391 ture could  also have simply provided in the Explanation for the disposal  of an  appeal on  merits and it would not have been necessary  to use  the other words, "on the disposal of an appeal  on any  ground other  than the  ground  that  the appellant  has   withdrawn  the   appeal.  The  words  used, "disposal of  the appeal on any ground other than the ground that  the   appellant  has   withdrawn  the   appeal"   will undoubtedly attract  within its  ambit the  disposal  of  an appeal on  the ground  of the  same being dismissed for non- prosecution, Though  in the  case of  such disposal  of  the appeal there will be no effective adjudication of the appeal on merits  and the  disposal of  the appeal may not have the effect of  the decree  of the  Trial Court  appealed against being merged  with any  decree of the Appellate Court on the disposal of the appeal.      The disposal  of an  appeal on the ground of limitation may or  may not be adjudication on the merits of the appeal, depending on  the particular  facts and circumstances of the case and  may or  may not result in the merger of the decree of the Trial Court with the decree, if any, of the appellate Court; but there cannot be any manner of doubt that when an’ appeal from  the ex-parte  decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal. As the  dismissal of  the appeal on the ground of limitation

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results in  the disposal  of the  appeal on any ground other than the  ground of  the withdrawal  of the  appeal  by  the appellant, the explanation is attracted, and the application for setting  aside the  ex-parte decree becomes in-competent after the disposal of the appeal and cannot be entertained.      As in  our view,  the application for setting aside the ex-parte decree  does not  lie and cannot be entertained, in view of the provisions contained in the Explanation, it does not become  necessary for  us to  go into  the merits of the application to  consider whether  sufficient cause  had been shown by the respondent for his nonappearance at the hearing at  the   date  fixed   and  also  for  not  preferring  the application with n the time prescribed.      The appeal, therefore, succeeds. The judgment and order passed by  the High  Court are  set aside  and the  ex-parte decree 392 passed in  favour of the appellant OD 6.12.1979 is restored. In the  facts and  circumstances of  this case,  we  do  not propose to make any order for costs. S.R.                                         Appeal allowed. 393