1. In this petition, the petitioners seek the condonation of delay of three years, six months and twenty two days in filing the appeal. As to why the delay was caused, the petitioners explain that the trial court passed ex parte decree on 18-2-1972. Then they filed appropriate for setting aside the ex parte decree on 1-3-1972 and the said petition was dismissed on 28-2-1974. Then the petitioners preferred C.M.A. 199 of 1974 in this Court. The C.M.A. was ultimately dismissed on 7-8-1975. Then the petitioners filed copy application on 6-9-75 for obtaining the certified copy of the judgment and decree and the same was furnished on 27-11-1975. Then the petitioners had to raise expenses, for preferring appeal and they could raise the said expenses by 9-12-1975. Then they filed the appeal against the ex parte decree. It is for these reasons that they could not file the appeal within time. They, therefore filed this petition under Section 9 of Limitation Act for condonation of delay of 3 years 6 months and 22 days in filing the appeal. The petitioners contend that the delay is not on account of negligence on their part and the delay has occurred on account of their pursuing, legal remedy available under law.
2. Sri Subhashan Reddy contends tat since the petitioners had taken proceedings mentioned above in various courts, the petitioners could not prefer this appeal within time and hence the delay should be condoned.
3. The learned counsel for the respondent, on the other hand, contends, that when two remedies are available and when the party had chosen to pursue one of the remedies they party cannot now take back and say that the delay is not on account of the negligence and hence benefit of Section 5 cannot be given to the petitioners.
4. I find there in the contention of the learned counsel for the respondent. There is no dispute that the appeal is time barred. It is true that for setting aside the ex parte decree, two remedies are open to the affected party. One is to file a petition under Order 9, Rule 13 for setting aside the ex parte decree. The other remedy is to prefer regular appeal against the ex parte decree. The petitioners herein have elected to pursue the first remedy i.e. to file a petition under Order 9, Rule 13, C.P.C.
5. Where the petitioners had chosen to file application under Order 9, Rule 13 for setting aside the ex parte decree the time spent in prosecuting the application cannot be deducted under Section 5 of the Limitation Act from the time allowed for filing appeal. The petitioners are not permitted under law to say that the delay was caused on account of their pursuing legal remedies available to them under law and that there was no negligence on their part as recourse to proceedings taken by them under Order 9, Rule 13 for setting aside the ex parte decree does not constitute sufficient cause as contemplated by Section 5 of the Limitation Act.
6. This legal position is made clear by the decision of the Bombay High Court in Jotiba Limbaji v. Ramappa Jotiba AIR 1938 Bom 459. In that case also the defendant was absent on the day of hearing and ex parte decree against the defendant was passed. Then he filed an application to set aside the ex parte decree, but that application was rejected. Again he preferred an appeal before the District Judge. But that also was dismissed. After the dismissal of that appeal, he preferred regular appeal to the District Court against the ex parte order on merits. Rangnekar, J, held that the appeal was time-barred and the fact that the defendant took proceedings to set aside the ex parte decree did not constitute sufficient cause within the meaning of Section 5 because it was perfectly open to the defendant to pursue the concurrent remedy of preferring an appeal against the ex parte decree on the merits whilst he was prosecuting his application to have the ex parte decree set aside.
7. The same view was taken by the Calcutta High Court in Rajendranaath Kanar v. Kamal Krishna Kundu Chowdhury, AIR 1932 Cal 558. The learned Judges followed the earlier decision of the same court in Ardha Chandra Rai Chowdhury v. M. Atangini Dassi, (1895) ILR 23 Cal 325. In that case Sri Comer Patheram C.J. and Beverley, J, held that :
'When an appellant elects to take proceedings for setting aside an ex parte decree and fails on merits in an application which he makes for that purpose, he cannot be allowed to fall back upon the remedy which was open to him at the time when the original decree was passed and of which he did not choose to avail himself and that recourse to proceedings taken as aforesaid was not a sufficient cause within the meaning of Section 5 of the Limitation Act for not preferring the appeal within time.'
8. In view of the above rulings, I have no hesitation to hold that the explanation offered by the petitioners for condonation of delay is untenable under law. Hence they are not entitled to have the benefit of Section 5 of the Limitation Act. The petition is, therefore, dismissed with costs.
9. Petition dismissed.