Honble SHARMA, J. – Legal questions which arise for consideration in the revision is whether the time spent in prosecuting the application under Order 9 Rule 13 CPC for setting aside the exparte decree, can be extended, in preferring the regular first appeal against the said decree? Whether the provisions contained under the provisions of Limitation Act are applicable in such a situation? (2). These questions have emerged in the following circumstances : (i) The plaintiffs non-petitioner (for short plaintiffs) instituted a suit for eviction with regard to disputed premises against the defendant petitioner (for short defendant). In that suit ex-parte decree was passed on Jan. 18, 1991 on the ground of default in making the pay- ment of rent of the said premises. (ii) The defendant filed an application under Order 9 Rule 13 for setting aside the said ex-parte decree on Feb. 6, 1991. It was dismissed vide order dated October 1, 1991. The appeal preferred against the said order was also dismissed by the appellate court on Feb. 10, 1995. (iii) The plaintiff then filed regular first appeal against the decree dated Jan. 18, 1991 alongwith an application under section 5 of the Limitation Act before the District Judge, Sawaimadhopur on Feb. 23, 1995. The appeal was not registered and dismissed vide order dated Oct. 10, 1995. As decree was not framed by the learned District Judge, the plaintiffs have preferred this revison assailing the said order. (3). I have given my anxious consideration to the arguments advanced before me and carefully perused the impugned order. (4). Reliance has been placedby Mr. Anil Mehta, learned counsel for the defe- ndant on Hassan Chand & Sons vs. H.H. Maharaja Sh. (3). I have given my anxious consideration to the arguments advanced before me and carefully perused the impugned order. (4). Reliance has been placedby Mr. Anil Mehta, learned counsel for the defe- ndant on Hassan Chand & Sons vs. H.H. Maharaja Sh. Gaj Singh,(1) in which the D.B. of this Court has observed thus : ``where it is open to a litigant to adopt concurrent remedies, and he adopts one of those remedies, and fails on the merits then when he later chooses to adopt the second remedy, he cannot be held entitled (save in the exceptional case of a review where such an application would properly lie) to the exclusion or condonation of time which has been spent by him on the prosecution of the first remedy, the ratio being that it was perfectly open to him to pursue the second remedy while he was prosecuting the other one, and that any other view would be productive of unnecessary delay in the administration of justice and lead to needless protraction of litigation. (5). Mr. Anil Mehta learned counsel for the defendant vehemently canvassed that ratio of Hassan Chands case (supra) is fully applicable in the instant case and no jurisdictional error was committed by the learned District Judge in passing the impugned order. (6). As against this view, Mr. Narendra Jain, learned counsel for the plaintiffs urged that the Apex Court has observed that time spent in prosecuting the applica- tion under Order 9 Rule 13 CPC, can be condoned under the provisions of Limitation Act. Mr. Jain, learned counsel, has placed reliance on Shyamal Kanti Danda vs. Chunilal Chaudhary(2). (7). In the case of Shyamal Kanti Danda (supra) the learned Munsif proceeded to deliver the judgment on merits and application for setting aside, what was styled as exparte decree under Order 9 Rule 13 CPC was moved but was dismissed as not maintainable. After an unsuccessful misc. appeal, a regular appeal, together with an application, for condonation of delay of 386 days in preferring the said appeal was also filed on the ground that appellant was prosecuting under legal advice, a remedy in another civil court, to be precise for setting aside the exparte decree under Order 9 Rule 13 CPC, but as the court was unable to grant relief, the time spent bonafide in prosecuting this remedy must be excluded in computing the period of limitation. The appellate court declined to condone the delay and after an unsuccessful revision petition in the High Court, special leave petition under Article 136 of the Constitution was filed in the Honble Supreme Court. The matter was disposed of at the special leave petition stage. The Honble Supreme Court issued following direction:– ``On the petitioner fully complying with the condition herein prescribed directing him to deposit the amount hereinabove mentioned within the time granted by this court, his application praying for con- doning the delay in preferring the appeal in the District Court shall stand allowed and the appeal shall also stand admitted to file and the same shall be allowed thereby setting aside the judgment of the learned Munsif disposing of the suit on merits. The petitioner will be permitted to participate in the proceedings before the learned Munsif and the case shall proceed from the stage where it was disposed of in the absence of the petitioner. In other words the learned Munsif shall hear submission on the evidence already recorded. (8). Ratio deducible from Hassan Chands case (supra) is that if two concurrent remedies are available to litigant and he chooses one of these remedies and fails on the merits, then he cannot be permitted to adopt another remedy. Applying this principle to the facts of the case before me, I come to the conclusion that if an application under Order 9 Rule 13 CPC is dismissed by the trial court or appellate court or even by a revisional court, it cannot be said that exparte decree passed by the trial court was considered on merits. In adjudicating the application under Or- der 9 Rule 13 CPC the court only examines whether the application is competent and whether reasons assigned in the application are tenable or not. So I am unable to agree that in choosing the remedy under Order 9 rule 13 CPC the petitioner failed on merits of the judgment and decree passed by the trial court. (9). The scope of the provisions of Order 9 Rule 13 CPC is limited and the trial court cannot judge the merit of the judgment and decree whereas under section 96 read with Order 41 Rule 1 CPC the appellate court can examine the merits and demerits of the judgment and decree passed by the trial court. (9). The scope of the provisions of Order 9 Rule 13 CPC is limited and the trial court cannot judge the merit of the judgment and decree whereas under section 96 read with Order 41 Rule 1 CPC the appellate court can examine the merits and demerits of the judgment and decree passed by the trial court. In my humble view in Hassan Chands case (supra) the scope of section 96 read with section 41 Rule 1 CPC was not brought before this court. Moreover, it is abundant clear from the ratio of Shyamal Kanti Dandas case (supra) that time spent in prosecuting the application under Order 9 Rule 13 CPC, can be condoned in preferring the regular first appeal against the same very exparte decree. (10). The broad principle, that is deducible from the discussions made herein above is that where an application under Order 9 Rule 13 CPC is dismissed and after an unsuccessful misc. appeal and revision, a regular first appeal against the said exparte decree, together an application under the provisions of the Limitation Act is filed, the time spent bonafidely in prosecuting the remedy under Order 9 Rule 13 CPC may be excluded in the facts and circumstance of each case. The appellate court in such an appeal shall only examine the merits and demerits of the decree and the case shall not be remitted to the trial court so as to provide opportunity to the defendant appellant to adduce evidence. (11). In the result, the revision is allowed, the order dated October 10, 1995 is set aside and delay in filing the appeal before the learned District Court is condo- ned. The case remitted to the learned District Judge, Sawai Madhopur with the direction to decide the appeal preferred by the petitioner on merits in pursuance of the observations made hereinabove in para 10 of the judgment. No costs. _