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3. In order to appreciate the questions arising for determination, facts-in-brief may be stated: Respondents are the plaintiffs and the appellants-petitioners are the defendants. Plaintiffs filed the suit for specific performance of an agreement of sale. The defendants remain absent despite service of summons. On 4.8.1994, ex parte decree was passed. Defendants filed an application under Order IX, Rule 13 of the Code for setting aside the ex parte decree along with an application under Section 5 of the Limitation Act seeking condonation of delay in late filing of the said application. Application seeking condonation of delay was dismissed on 14.8.1997. Feeling aggrieved, revision petition was filed which was allowed on 26.4.2001 subject to payment of costs. Defendants' application for setting aside the ex parte decree was then considered on merits but was dismissed by the lower Court. Against the said order, an appeal was preferred which was dismissed on 4.4.2002. After dismissal of the appeal, a regular appeal was filed on 8.4.2002 under Section 96 of the Code of Civil Procedure by the defendants against the ex parte decree along with an application (CMP.7201 of 2002) seeking condonation of delay in filing the appeal. The appeal is still at the SR stage (CCCA.(SR).No. 27145 of 2002). The delay was sought to be condoned on the ground that the defendants-petitioners had diligently been prosecuting the matter by filing an application under Order DC, Rule 13 of the Code. Though there was delay in filing the application under Order DC, Rule 13 of the Code, the same was condoned but the application filed under Order DC, Rule 13 of the Code was dismissed on merits and appeal (CMA.No. 119 of 2002) filed against the said order was also dismissed on 4.4.2002. Appeal under Section 96 of the Code was filed on 8.4.2002. Therefore, the period from 22nd October, 1994, the date on which the application under Order DC, Rule 13 of the Code was filed to 4.4.2002, the date on which the application filed under Order DC, Rule 13 of the Code was dismissed, was sought to be excluded on the ground that defendants-petitioners had diligently been prosecuting the matter, there was no delay or in any case the delay be condoned.

9. With due respect to the Judges comprising the Division Bench in Prabhakar's case, the Referring Bench was of the view that the conclusion arrived at by the Division Bench that a defendant was entitled to exclude the period spent in prosecuting the application filed under Order DC, Rule 13 of the Code and the Civil Revision Petition for the purpose of computing limitation for filing an appeal was as a result of misreading of the judgment in Jokam Reddy's case.

10. In Jokam Reddy 's case defendant's application under Order DC, Rule 13 of the Code was dismissed by the Trial Court. Keeping quiet for a month the defendant applied for copies of ex parte decree and then presented an appeal under Section 96 of the Code, against the ex parte decree with a petition to condone the delay in filing the appeal. Learned Single Judge accepted the contention of the plaintiff in the said case that when two remedies were open to the affected party against an ex parte decree, if one remedy like filing a petition for setting aside the ex parte decree under Order DC, Rule 13 of the Code was adopted, the affected party cannot thereafter avail itself of the other remedy of preferring a regular appeal under Section 96 of the Code against the ex parte decree. Learned Single Judge had relied upon two decisions of the Calcutta High Court in Chandra Rai Chowdary v. M. Thangini Dessi, ILR (1895) 23 Calcutta 325 and Rajendranath Kanrar v. Kamal Krishna Kundu Chowdary, AIR 1932 Cal. 558. Learned Single Judge also held that the explanation offered by the defendant-petitioner seeking condonation of delay in filing the appeal was untenable and accordingly dismissed the application filed under Section 5 of the Limitation Act. In these circumstances, Letters Patent Appeal was preferred. The Division Bench on the point of applicability of Section 14 of the Limitation Act, upheld the submission of the learned Counsel for the plaintiffs that Section 14 of the Limitation Act had no application in such circumstances, saying:

21. Reference before the Full Bench of Madhya Pradesh High Court in Smt. Archna Kumar's case was made when doubts were expressed about the correctness of the decision rendered by the Division Bench of the same High Court in Sumera's case (supra) pertaining to the issue that after dismissal of application under Order IX Rule 13 of the Code, whether an appeal could lie under Section 96(2) of the Code assailing the judgment and decree on merits.

22. In Sumera's case, the Division Bench of the Madhya Pradesh High Court had quoted passage from the decision in Rani Choudhury's case and thereafter made its observations that they were bound by what had been observed in Rani Choudhury's case in the quoted portion, and, for that reason held that a regular appeal was not maintainable after an application under Order IX, Rule 13 of the Code had been dismissed. The Full Bench of the Madhya Pradesh High Court examined the question which had arisen for consideration in Rani Chodhury's case saying that the question arising for consideration was about the maintainability of an application under Order DC, Rule 13 of the Code after an appeal filed under Section 96(2) of the Code against the ex parte judgment and decree had been dismissed on any ground whatsoever because of the operation of the explanation introduced by Code of Civil Procedure Amendment Act, 1976, and, in that view of the matter, concluded that the Supreme Court was not in seisin with regard to the maintainability of an appeal under Section 96(2) of the Code after dismissal of the application filed under Order DC, Rule 13 of the Code.

29. From a reading of the above passage, the ratio as has been culled out from Rani Choudhury's case in the light of the question arising for consideration before the Supreme Court in Rani Choudhury's case as regards the impact of explanation to Rule 13 of Order DC of the Code was that if an appeal against an ex parte decree has been disposed of on any ground whatsoever other than the ground of the appellant withdrawing the appeal, no application for setting aside the ex parte decree under Order DC, Rule 13 of the Code is maintainable. There is an avowed purpose in bringing amendment by inserting explanation to Order DC, Rule 13 of the Code and the intention of the Legislature is explained in Rani Chodudhury's case and reiterated in P. Kiran Kuamr's case only to the extent that if an appeal has been preferred against an ex parte decree and the same has been dismissed on any ground other than the withdrawal of the appeal, the same would cause a bar to the filing of an application under Order IX, Rule 13 of the Code or in continuing with such an application for setting aside the ex parte decree, in case it was still pending as on the date of the dismissal of the appeal. But, converse is not true and there is no embargo placed by the legislation, and, on that point, we are in full agreement with the ratio of the decision of the Madhya Pradesh High Court in Smt. Archana Kumar's case that even after dismissal of an application under Order IX, Rule 13 of the Code, a regular appeal under Section 96(2) of the Code is maintainable. Accordingly we answer the second question.