Neutral Citation No. - 2025:AHC:75601 Court No. - 9 Case :- MATTERS UNDER ARTICLE 227 No. - 52 of 2022 Petitioner :- Lalu Prasad And Another Respondent :- Jagat Raj And 2 Others Counsel for Petitioner :- Akhilesh Kumar Khare,Alok Saxena,Narendra Kumar Bhadana,S.K. Mishra,Sanjeev Singh Counsel for Respondent :- C.S.C.,Kamlesh Kumar Tiwari,Mayank Srivastava,Pramod Kumar Hon'ble Rohit Ranjan Agarwal,J. 1. Sri S.K.Mishra, learned counsel for the petitioners, Sri K.K.Tiwari, learned counsel for respondent No.2 and learned Standing Counsel for respondent No.3 are present. 2. This writ petition is directed against the judgment dated 23.11.2021 passed by Additional District Judge, Court No.2, Jhansi in Misc. Civil Appeal 22 of 2019. 3. Sri S.K.Mishra, learned counsel for the petitioners submits that misc. appeal filed by respondent No.1 against the order recalling ex parte decree on the application under IX, Rule 13 C.P.C., was not maintainable and only misc. appeal under Order XLIII, Rule 1(d) C.P.C. would lie in case the application under Order IX, Rule 13 C.P.C. is rejected. According to him, only civil revision under Section 115 C.P.C. lies. 4. Sri K.K.Tiwari, learned counsel for respondent No.2 has vehemently opposed the writ petition and submitted that the petitioner has not come with clean hands and once the application under Order IX, Rule 13 C.P.C was allowed he did not deposit the cost. 5. I have heard the respective counsel for the parties and perused the material on record. 6. Order XLIII, rule 1(d) C.P.C. provides as under : "1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of Section 104, namely:- (d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte." 7. It is only in case when an application under Order IX, Rule 13 C.P.C. is filed and the same is rejected that a misc appeal lies under the said provision. 8. In the instant case, ex parte decree is dated 05.03.2011 passed in favour of plaintiff-respondent No.2 against which the defendant- petitioner had moved an application under Order IX, Rule 13 C.P.C. for recalling the ex parte decree, which has been allowed by the trial Court. 9. Against the said order, a revision under Section 115 C.P.C. was maintainable and no misc. appeal under Order XLIII Rule 1(d) C.P.C. was maintainable. The court below had committed gross illegality in allowing the misc. appeal by the order impugned. 10. In view of the said fact, order dated 23.11.2021 passed by Additional District Judge, Court No.2, Jhansi in Misc. Civil Appeal No.22 of 2019 is hereby set aside. The writ petition stands allowed. 11. The application filed under Order IX, Rule 13 C.P.C. by the defendants- petitioners stands allowed and the suit is restored to its original number. The trial Court shall proceed with the aforesaid suit. Order Date :- 9.5.2025 Kushal Digitally signed by :- KUSHAL AGRAWAL High Court of Judicature at Allahabad