(1) That the disposal of an appeal against the ex-parte decree means disposal on merits for debaring the defendant/applicant from filing or continuing an application for setting aside the ex-parte decree under Order 9 Rule 13 of the Civil Procedure Code . If an application for condensation of delay in filing appeal has not been accepted it means no appeal was preferred in law and dismissal of appeal as barred by time would not be disposal of appeal as contemplated under Explanationn to Order 9 Rule 13 of the Civil Procedure Code . In thi view of the matter it was held that the application filed by the appellant under Order Ix Rule 13 is maintainable.
(2) Held further that the appellant is not to explain deligence during the whole period of limitation prescribed for appeal. The appellant is to explain his deligence from the last date of limitation till the date of filing the application /appeal. 1962 S.C. 361.
(3) Dealing with the question whether there was sufficient cause for condensation of delay in filing the application under Order 9 Rule 13 of the C.PC. and for setting aside the ex-parte decree, the learned Judge after considering the material on record held that on account of exigencies of service the appellant was prevented from filing the application and accordingly the appellant was held entitled to the condensation of delay in filing the said application.
(4) It was further held that there is also sufficient cause for setting aside the ex-parte decree dated 6-12-79 within the meaning of Order 9 Rule 13 Civil Procedure Code . Taking into consideration the certificate of the commandant that the appellant was out of station on a temporary duty under the authority of Army Headquarter from 10-11-79 and that he joined duty in Banglore only on 10-12-79, that he was on essential duty and the exigencies of service were such as did not permit him to proceed to Delhi to attend the Court to pursue his interest in the proceedings for divorce, it was held that there was sufficient cause for the appellant's non-appearance on 3-12-79 for which date he was served and on 6-12-79 when the ex-parte decree was passed against him.
(5) The judgment and order of the trial court dismissing the appellant's application under Order 9 Rule 13 was, thereforee, set aside. The application under Order 9 Rule 13 was accepted and the decree and judgment of the trial court dated 6-12-79 was also set aside.