IYYAPU PANDURANGA RAO, J.

( 1 ) THIS is an appeal against the order dated 18-4-1990 of the learned III Additional Judge, City Civil Court, Hyderabad at Secundrabad dismissing I. A. No. 161/ 89 in O. S. No. 213/87 on his file. Aggrieved by the same, the petitioner in the I. A. and the defendant in the suit filed this appeal.

( 2 ) THE points that arise for consideration are: (1) Whether this is an order attracting the provisions of O. 9, R. 13, C. P. C. ? (2) In any event whether there are grounds for setting aside the ex parte order? (3) To what relief?

( 3 ) POINT No. 1: The facts which are not in dispute are the following: on 8-2-89 when the judgment was pronounced, the defendant has not filed the written statement, though the written statement was filed sometime later the same day. Thus this is case where the lower Court disposed of the matter under O. 8, R. 10, C. P. C. , decreeing the suit at the stage when the written statement was not filed. It is also to be noted that the judgment of the lower Court shows that P. W. 1 was examined, some documents were marked while decreeing the suit. Relying upon these circumstances, the learned counsel for the petitioner submits that this is not an ex parte decree; the decree was passed on merits having considered the oral and documentary evidence adduced by the plaintiff and consequently the provisions of O. 9, R. 13, C. P. C. are not attracted.

( 4 ) ORDER IX, R. 13, C. P. C. , reads as follows:"setting aside decree ex parte against defendants:-- 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 if 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,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. "

( 5 ) THIS position is squarely covered by the two decisions one, of the Madras High Court and the other of the Karnataka High Court. In the decision reported in N. Jayaraman v. Glaxo Laboratories India Ltd. , AIR 1981 Mad 258 it is observed as follows (at p. 260):"the requirement under O. 8, R. 10, C. P. C. to pronounce a judgment against the party who fails to present a written statement does not indicate that the need for writing a judgment is dispensed with and the mechanical one-sided order should be made by the Court without applying its mind. It, therefore, follows that in the present case there has been no judgment on the merit, but only a decree against the respondent owing to its failure to file a written statement. "

( 6 ) THE decision reported in Kuvarp Industries, Bangalore v. State Bank of Mysore, AIR 1985 Kant 77 is a case where after granting 8 adjournments the Court adjourned the suit finally for filing written statement to a certain date. On that date, the defendants did not file the written statement and when their lawyer wanted to file application for better particulars, the Court did not permit him to do so and posted the suit later on, on the same date, for filing written statement; later when no written statement was filed and the defendants were absent when called, the Court set them ex parte and judgment and decree were passed under O. 8, R. 10, C. P. C. On the said particulars it is observed as follows (Paras 7 and 10) :-- "therefore, the insertion of the word decree in R. 10 now, in my opinion, is meant to give an alte

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