Jyotirmay Bhattacharya, J. - (1.) The defendant/appellant has filed the instant first miscellaneous appeal challenging an order being no. 76 dated 22nd August, 2016 passed by the learned Judge, XIIIth Bench, City Civil Court at Calcutta in Misc. Case No. 1038 of 2012 rejecting his application under Order 9 Rule 13 of the Code of Civil Procedure.
(2.) At the time of admission of the appeal, a preliminary objection was raised by Mr. Karmakar, learned advocate appearing for the plaintiffs/respondents regarding maintainability of this appeal. It is contended by him that since the ex parte decree was passed in a suit for recovery of possession under Section 6 of the Specific Relief Act, the order refusing to set aside the ex parte decree by the court below is not appealable before this Court as the parent order, i.e., the ex parte decree which was passed in such a suit is not open to appeal as per the provision contained in Section 6(3) of the Specific Relief Act, 1963.
(3.) Mr. Karmakar further contends that Order 43 Rule 1(d) of the Civil Procedure Code also provides that an appeal under the said Order will lie before the appellate forum only when an order rejecting an application under Order 9 Rule 13 of the Code of Civil Procedure is passed in a case which is open to appeal. According to him, since the ex parte decree passed in a suit under Section 6 of the Specific Relief Act is not appealable, the instant appeal is not maintainable in view of the provision contained in Order 43 Rule 1(d) of the Civil Procedure Code.;