P. KODDANDA RAMAYYA, J.

( 1 ) THE relative scope of Rules 2 and 3 of Order 17 of the Code of Civil procedure as amended by Act 104 of 1976 and barring the remedy of the defaulting party to reopen the suit under Or. 9 C. P. C. is raised in this revision.

( 2 ) THE petitioner who is the defendant in the suit filed an application under Or. 9 Rule 13 CPC to set aside the ex-parte decree passed on 14-7-82. It is averred in the petition that when the case was called a representation was made to pass over the case and by the time the advocate came the case was called and an ex parte judgment was passed and hence the judgment and decree are liable to be set aside. The court below took the view that in view of the Explanation added to Or 17 Rule 2 CPC by the Amendment Act 104 of 1976 the absenting party must be deemed to have been present and hence the judgment pronounced on merits cannot be set aside as the party has to file an appeal against such judgment as he lost his remedy under Or. 9 Rule 13 CPC. Against the said order the present Civil Revision Petition is filed.

( 3 ) THE learned counsel for the petitioner contended that the order passed by the court below pronouncing the judgment on 14-7-1982 is an exporte judgment and the consequential decree thereon is an ex parte decree and hence the order must be deemed to have been passed under Or. 17 Rule 2 CPC but not Rule 3 of the said Order and consequently the remedy under Order 9 rule 13 CPC is not lost. It was further urged that the Explanation appended to sub-rule (2) is not attracted to the facts of the case as no evidence was adduced in the case by the defaulting party and hence even the judgment delivered on merits must be treated as one passed on default of the party and it must be treated as an exparte decree within the meaning of Order 9 Rule 13 c. P. C.

( 4 ) I have to examine the relative scope of Rules 2 and 3 of Or. 17 c. P. C. and find out whether the remedy under Or. 9 R. 13 is lost to the,party.

( 5 ) IT is necessary to notice Order 17 Rules 2 and 3 C. P. C. before the amendment and after the amendment.

( 6 ) SO far Rule 2 is concerned an Explanation is added by the Amendment act 104 of 1976 and there is an amendment in this State which came into force on 27-4-1961. The rule with both the amendments reads as follows:"where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Or. IX or make such other order as it thinks fit. Explanation:where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the court may, in its discretion proceed with the case as if such party were present". (Added by Act 104 of 1976)"explanation:the mere presence in court of a party or his counsel not duly instructed shall -not be considered to be an appearance of the party within the meaning of this rule. " (State Amendment) so far Rule 3 is concerned clauses (a) and (b) are added and there is also a state amendment adding an explanation to this rule also: Rule (3) before amendment reads as follows :"court may proceed notwithstanding either party fails to produce evidence, etc. ,: where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, not withstanding such default, proceed to decide the suit forthwith. "the Rule as amended by the Central Act with State amendment reads as follows:"where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notw

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