- (1.) A short but interesting question arises in this revision.
(2.) An ex parte decree for eviction on the ground of default as well as reasonable requirement of the suit premises by the plaintiff respondents was passed against the petitioner on 14-2-1991 by the Munsif and Judicial Magistrate, Bhilwara. The defendant applied for setting aside the ex parte decree under Order 9, Rule 13, C.P.C. and he also preferred an appeal against the ex parte decree. Appeal, against the decree was dismissed by the Civil Judge, Bhilawara on 29-8-1991 as barred by limitation. The petitioner preferred a second appeal before this Court, which was dismissed. in the presence of both parties as withdrawn on 3-10-1991 with the following observations:- "I have heard the learned counsel for the parties, in view of the fact that the appeal against the order of rejecting application under Order 9, Rule 13, C.P.C. is still pending, therefore, any observations made in the impugned judgments Will not affect the case of the appellant on merits in those proceedings." While, the aforesaid proceedings were going on, the trial Court rejected the application under Order 9, Rule 13 on-26-9-1991. The appeal against the said order which was pending at the time of disposal of second appeal has been dismissed by the impugned order dated 2nd Nov. 1993 by holding that in view of Explanation- attached to Rule 9 of Order 13, C.P.C. w.e.f. 1-4-1977 by the Civil Procedure Code (Amendment) Act, 1976, the application is not maintainable because the appeal against the ex parte decree has been disposed of by the Civil Judge otherwise than by withdrawal of appeal.
(3.) Learned counsel. for the petitioner contends that the lower Appellate Court has seriously erred and has acted with material irregularity and illegality in the exercised its jurisdiction by disposing of the appeal by taking into consideration 'the decision in appeal' against the ex parte decree contrary to observations made by this Court in its order dt. 3-10-1991. He contends that the observations made by this Court in its order dated 3-10-1991 were made in the presence of both the parties and is therefore, binding on the parties irrespective of the fact whether they are correct in law or contrary to law.;