Order 9, Rule 13 of The Code of Civil Procedure, 1908

“When an ex-parte decree is passed, there are two remedies – either (a) file an application under Order 9, Rule 13; or (b) file an appeal under Section 96(2). The question to be considered is whether the two options are to be exercised simultaneously or can also be exercised consecutively. If the appeal under Section 96(2) has been dismissed, one cannot file an application under Order 9, Rule 13; one cannot fall back upon the remedy under Order 9, Rule 13. A litigant may, of course, first file an application under Order 9, Rule 13 CPC and thereafter may opt to file an appeal under Section 96(2). An appeal under Section 96(2) is a statutory right. It is a question of fact whether dilatory tactics have been adopted or whether there is lack of bona fide in pursuing the remedy of appeal under Section 96(2) after the dismissal of the application under Order 9, Rule 13. The same has to be considered depending upon the facts and circumstances of each case.

Hon’ble Justice R. Banumathi, N. Mohan v. R. Madhu, [Civil Appeal No. 8898 of 2019].