Decided on August 24,1982



- (1.) I agree that the appeal must succeed.
(2.) The real question is whether the Explanation to R. 13 of O. 9 of the Civil P. C. bars the appeal filed by the respondent against the ex parte decree. The Explanation was enacted by the Civil P. C. (Amendment) Act, 1976 with effect from Feb. 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 It was where the appeal was disposed of, and the appellate decree superseded the trial court decree by reversing, confirming or varying it that the trial court could not proceed to set aside its ex parte decree.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 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 is 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 Feb. l, 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has filed an appeal and the appeal has been disposed ofon any groundother than the ground that the appeal has been withdrawn by the appellant. No doubt the provision is 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 provision has been enacted. In the present case, the rule in Heydon's case (1584) 76 ER 637, approved of and applied by this Court in Swantraj v. State of Maharashtra (1974) 3 SCR 287: (AIR 1974 SC 517) and many other cases, is attracted. What was the law before the amendment, what was the mischief and defeat 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.
(3.) 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 re-decision on the merits. Moreover, on the two proceedings initiated by the defendant, the application under R. 13 of O. 9 would subsequently become fructuous 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 proeeedings. 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 simplifing 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 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 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 appear to be disposed of on any other ground, he was denied the right to 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.;

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