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Criminal Procedure Code QUESTION #9500
Question 1
A Court of first instance passes an ex parte decree against B. B applies to set it aside, but his application is dismissed. B then appeals against the ex parte decree itself. Is this appeal maintainable?
  • No; B cannot avail both remedies simultaneously
  • No; B's only remedy is the application to set aside the ex parte decree
  • No; B waived his appeal right by first applying to set aside the decree
  • Yes; where the application to set aside an ex parte decree is dismissed, B retains the right to appeal against the original ex parte decree; both remedies co-exist✔️
Correct Answer Explanation
Under Order IX Rule 13 and Order XLIII CPC, there is no bar on a defendant simultaneously or sequentially pursuing an application to set aside an ex parte decree and an appeal from that decree. These are independent remedies. Dismissal of the application does not extinguish the right of appeal.