In this case, second appeal was filed against dismissal of first appeal for default on ground of delay, without any decision on merits in such first appeal. Only permissible course before High Court, held, was to consider validity of such first appellate order. High Court in second appeal, held, erred in treating the matter as an application under Or. 9 R. 13 and setting aside ex parte decree itself, and remanding suit to trial court for decision afresh on merit.
[Mamtaz v. Gulsuma, (2022) 4 SCC 555]