JUDGMENT: (S. A. BOBDE, J.) 1. Heard. Admit. Taken up for final hearing by consent of the parties. 2. This appeal is preferred by landlord against order of the learned Single Judge holding that the lower appellate Court was justified in holding that the application under Order IX Rule 13 of the Code of Civil Procedure was not maintainable but remanding the matter to the District Judge, Gondia to decide the appeal in accordance with law. The suit filed by the appellant before the Civil Judge Senior Division, Gondia for eviction, possession and arrears of rent was proceeded ex parteand eventually decreed. The tenants preferred an appeal against the ex partedecree along with an application for condonation of delay. They also filed an application under Order IX Rule 13 of the C.P.C. for setting aside the ex partedecree. The District Judge, Gondia dismissed the application for condonation of delay in filing the appeal against the ex partedecree and the civil suit was also dismissed. Thereafter, the trial Court i.e. Civil Judge Senior Division, Gondia dismissed the tenant’s application under Order IX Rule 13 of the C.P.C. for setting aside the ex parte decree. 3. The tenants, therefore, preferred Misc. Civil Appeal before the District Judge, Gondia against the order rejecting their application under Order IX Rule 13. The appellant-landlord raised a preliminary objection to the maintainability of this appeal on the ground that after dismissal of the regular appeal against the ex partedecree, the application under Order IX Rule 13 of the C.P.C. was bound to be dismissed in view of explanation to Order IX Rule 13 and, therefore, the Misc. Civil Appeal under Order XLIII Rule 1-A of the C.P.C. against the order rejecting application under Order IX Rule 13 was itself not tenable. 4. The learned District Judge hearing appeal under Order XLIII Rule 1-A against rejection of the application under Order IX Rule 13, held that application under Order IX Rule 13 was not maintainable since ex parte judgment and order had been dismissed and not withdrawn as contemplated by explanation to Order IX Rule 13. The District Judge, however, also held that since the application under Order IX Rule 13 was not tenable, the appeal against rejection of that application was also not tenable. The explanation to Order IX Rule 13 of the C.P.C. reads as follows: “Order IX Rule 13 13. The District Judge, however, also held that since the application under Order IX Rule 13 was not tenable, the appeal against rejection of that application was also not tenable. The explanation to Order IX Rule 13 of the C.P.C. reads as follows: “Order IX Rule 13 13. Setting aside decree ex parte against defendant-In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and it he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further 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 plaintiff’s claim. Explanation-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 setting aside that ex parte decree.” Order XLIII Rule 1-A of the C.P.C. which is relevant reads as follows: “Order XLIII Rule 1-A 1-A. Right to challenge non-appealable orders in appeal against decrees- (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.” From a plain reading of the explanation to Order IX Rule 13, it is obvious that an application for setting aside an ex partedecree will not lie where an appeal has also been filed against that very decree and has been disposed of on any grounds other than the fact that it has been withdrawn. Therefore, in the writ petition filed by the tenants, the learned Single Judge has rightly held that the finding of the learned District Judge to that effect is correct. 5. However, as regards the tenability of the appeal against the order rejecting the application under Order IX rule 13 of the C.P.C. it is equally obvious that the learned District Judge was wrong in holding the same to be not maintainable merely because application under Order IX Rule 13 of the C.P.C. was found to be not maintainable. A Judgment Debtor whose application under Order IX Rule 13 for setting aside the dismissal of a suit has been rejected is entitled to prefer an appeal and the appeal cannot be dismissed as not tenable merely because the application under Order IX Rule 13 has been rejected as not tenable. The learned Single Judge quite rightly observed in the judgment that the District Judge ought not to have held that the appeal before him was not tenable. 6. Thus, there is no reason why the appellant-tenant should raise any grievance about these findings of the learned Single Judge. However, the learned Single Judge has remanded the matter back to the appellate Court for deciding the appeal, in accordance with law. The appellant, aggrieved by that finding has preferred this Letters Patent Appeal. 7. Having considered the matter, we are of the view that the remand of the matter to the appellate Court was not necessary since the learned Single Judge had come to the conclusion that the finding of the learned District Judge that the appeal was not tenable was wrong. 7. Having considered the matter, we are of the view that the remand of the matter to the appellate Court was not necessary since the learned Single Judge had come to the conclusion that the finding of the learned District Judge that the appeal was not tenable was wrong. The learned Single Judge having held that the appeal was tenable and that the order in appeal was otherwise justified, it would have been proper for the learned single Judge to hold that the application under Order IX Rule 13 of the C.P.C. was rightly rejected as not tenable. The order of the remand results in sending the matter back to the appellate Court only for the purpose of rendering a finding that the appeal is tenable. This was not necessary. In this view of the matter, we set aside only the direction of the learned Single Judge remanding the matter back to appellate Court. In our view, the order of the learned Single Judge is liable to be upheld and the order of the remand to the lower appellate Court is liable to be set aside. Order accordingly. The L. P. A. stands disposed of. No order as to costs.