Judgment 1. This is an application by the defendants whose application for setting aside an ex parte decree has been dismissed on the ground that having preferred an appeal against the said decree, they had no right to apply under R. 13 of Or. 9 of the Code of Civil Procedure (hereinafter referred to as the Code) in view of the amendment introduced in R. 13 in 1976 (Act 104 of 1976). 2. Some facts may be briefly stated. Title suit No. 341 of 1974 was filed by opposite parties Nos. 1 and 2 against the petitioners in the Court of the Subordinate Judge, Sasaram, for certain declaration regarding the entries made in the revisional survey records. This suit was decreed ex parte on 20.07.1977. The petitioners filed a miscellaneous case under Or. 9, R. 13 of the Code for setting aside the ex parte decree, inter alia, on the ground that no summons were served on them. They also preferred a title appeal against the ex parte decree before the District Judge, Bhojpur, being Title Appeal No. 153 of 1977. Unfortunately, for the petitioners, the said title appeal stood dismissed on 31.01.1978 for non-compliance of the courts order for filing certain processes etc. for issue of appeal notices on the respondents. In the restoration matter, one of the points agitated by the plaintiffs was that in view of the Explanation added by the 1976 amendment, as mentioned above, the application under Rule 13 was not maintainable. The stand of the petitioner, however, was that inasmuch as the appeal was dismissed for default without any adjudication, the rigour of the Explanation would not be attracted. The learned Subordinate Judge, however, overruled the plea of the petitioners and dismissed the miscellaneous case on the ground that it was not maintainable. The view of the learned Subordinate Judge has been affirmed by the lower appellate Court in the appeal preferred by the petitioners. 3. Mr. Rama Raman appearing in support of this application, advanced the same contention as was before the trial Court already indicated above. 4. The 1976 amending Act has inserted a proviso as well as an Explanation to R.13 limiting the area of operation thereof. By the proviso it has been provided that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons. 4. The 1976 amending Act has inserted a proviso as well as an Explanation to R.13 limiting the area of operation thereof. By the proviso it has been provided that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons. If it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. The Explanation, however, reads as follows : "Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for selling aside that ex parte decree." From a perusal of the Explanation it is evident that the disability attached to the defendant who chooses to file an appeal against an ex parte decree in order to maintain an application under R.13 of O.9, has been relaxed only in one case and that is where the appeal is withdrawn by him. It does not provide that in order to apply the embargo, there should be an adjudication on the merits of the appeal, and having examined the scheme of the Explanation, I am inclined to take a view that the dismissal of the appeal for default or other-wise without any adjudication, does not make any difference and the restriction under the Explanation would apply with equal force. The reason behind the insertion of the Explanation as appears to me, is quite obvious. A defendant against whom an ex parte decree has been passed has four courses open to him namely, (1) an application under Rule 9 of O.13; (2) an appeal under Sec. 96; (3) an application for a review under O.47; and (4) a suit on the ground of fraud. Before insertion of the Explanation the consensus of opinion of the different High courts in India has been that both the remedies (1) and (2) could be prosecuted concurrently as long as no decision was given in either of them. Before insertion of the Explanation the consensus of opinion of the different High courts in India has been that both the remedies (1) and (2) could be prosecuted concurrently as long as no decision was given in either of them. The mere fact that one remedy has not been resorted to would not ipso facto bar the other, nor did the fact that no application had been filed under O.9, R.13 affect the maintainability of the appeal, but in such a case, i.e., where only an appeal was preferred against the ex parte decree, there was a conflict of opinion as to the power of the appellate Court to question the propriety of the ex parte order itself and to remand the case for re-trial on that point. The view of the majority of the High Courts including this Court, however, was that the appellate Court could go into the question, and if necessary, remand the case under Order 41, Rule 23 or under Sec.151 for a fresh decision on the sufficiency of the cause for non-appearance. Perhaps, in view of the legal position obtaining as indicated above the Parliament inserted the Explanation curtailing one of the rights of a defendant to some extent that in case he decided to file an appeal against the ex parte decree, then he could not maintain an application under R. 13 without withdrawing the appeal. The matter, therefore, is left to the discretion of the defendant. The argument, however, is that the dismissal of the appeal for default in fact amounted to its disposal without any adjudication and, therefore, there was no impediment in the way of the trial Court to entertain an application even thereafter inasmuch as even according to the provisions as existing before the amendment of the 1976 Act, where an appellate Court gave a decision in appeal from an ex parte decree, the Court of first instance ceased to have jurisdiction to entertain or dispose of an application to set aside the decree because the decree of the trial court became superseded or merged in that of the appellate Court in the case of dismissal and thus where the appeal was dismissed for default, there was no decree of the appellate Court which could be said to supersede the decree of the trial Court so as to prevent the defendant from applying to the trial Court. On this question also, there was a divergence of opinion in the different High Courts and, as it appears to me, to set at rest this controversy and in order to achieve expedition the Parliament in clear and unambiguous terms restricted the first two remedies of a defendant, namely, an application under Rule 13 and an appeal under S. 96, which he could prosecute earlier concurrently as long as no decision was given in either of them, to this extent that once he chose to go in appeal then he could not at the same time prosecute the other remedy by way of an application under O.9, R.13 unless and until he decided to give up the appellate remedy by withdrawing the same and not otherwise. 5. I am not prepared to accept the argument of Mr. Rama Raman that allowing the appeal to go by default would tantamount to its withdrawal inasmuch as, if an appeal is dismissed for default the appellant has got a remedy for its restoration and if he succeeds in getting it restored then he can still prosecute the same and, the appellate Court could go into the question of sufficiency of the cause of action of the defendant and could remand the matter to the trial Court. The Parliament has, therefore, very expressly made only one exception to choose the alternative remedy of an application under O.9, R.13 by allowing the appellant to withdraw his appeal and not in any other case. In other words, the negligence displayed by the defendant in prosecuting the appeal has not been permitted to be condoned or given a go-by by keeping his doors still open for the alternative remedy of an application under R.13. In this connection I may also usefully refer to a Bench decision of this Court in the case of Bhai Lal Tanti V/s. Prabhu Sahu ( AIR 1953 Pat 223 ) where when an application under Rule 58 of O.21 of the Code was dismissed for default, it was held that it amounted to a decision and the remedy of the claimant was to institute a suit under Rule 63. 6. Mr. 6. Mr. Rama Raman, however, placed reliance upon a decision in Parshava Properties Ltd. V/s. A.K. Bose ( 1979 BBCJ 571 ) : ( AIR 1979 Pat 308 ) where this Court was interpreting the term decree as defined in Sec.2(2) of the Code, as amended. Having examined the decision, I do not find that this has got any bearing on the point in issue. No decision taking a contrary view was cited and having given my reasons as above. I hold that the Court below has taken a very correct view of the provision as mentioned above. I do not, therefore, find any merit in this application. 7. In the result, the application is dismissed. There will, however, be no order as to costs.