The explanation to Order 17 Rule 2 C. P. C. is not applicable when the defendant has not yet started adducing evidence. In such cases, Order 9 Rule 13 C. P. C. is applicable, which allows the court to set aside the ex-parte decree if sufficient cause is shown.

( 1 ) WE have heard the learned counsel appearing for both the parties and taken up these three appeals for final disposal.

( 2 ) THESE three appeals are filed against the orders of the V Additional judge, City Civil Court, Hyderabad, dated 12-11-1982 refusing to set aside the ex-parte decrees.

( 3 ) THE main submission of the learned counsel for the appellant is that the matter was posted to 17-8-82 and on that day a memo was f led by the learned counsel appearing for the appellant (5th defendant) that he was going to file a transfer petition in the High Court On that basis the case was adjourned to 18-9-1982. The learned counsel for the appellant requested one of his colleagues Sri raghava Rao to represent him in the court and ask for an adjounment on ground that the transfer petition was filed in the High Court. Sri Raghava Rao, for some reason or the other, did not appear on that day before the Court and request for an adjournment. Consequently, the learned Judge set the defendant-appellant ex-parte and proceeded further. Arguments were heard for the plaintiff and the judgment was delivered on 20-9-1982, the petition for setting aside, the exparte decrees was filed on 22-9-1982. In support of the said petition, Mr. K. Venkataratnam, learned counsel appearing for the appellant in the Court below filed an afficavitstaing that as he had some work in the Commissioner s office on 139-1982 he requested one of his friends Sri Raghava Rao. Advocate, on 17-9-1982 to represent before the Court that the matter might be adjourned on the ground that he filed a transfer petition in the High court. He had also furnished the s. R. Number of that petition. It is further stated in the affidavit that valuable evidence was on record adduced by the plaintiff that the appellant has every chance of getting the suits dismissed, that on no occasion he (5th defendant) failed to get into the box, that he had ample evidence in support of his case and that but for his instructions the appellant would have been present before the Court on 18-9-1982 Ultimately, in his affidavit the learned counsel requested to set aside the judgment and decree passed in 0. S. No. 137. 109 and 480 of 1977 on 20-9-1982 in the interests of justice.

( 4 ) IN the counter filed on behalf of the plaintifff it is stated that the petition is not maintainable, that the defendant-appellant is deliberately dragging on the proceedings all these years, that even after the plaintiffs evidence was closed in the suits, he did not take any steps to adduce evidence, but on the other hand it was represented on his behalf that a transfer petition would be filed to transfer the suits to some other Court. But in fact he did not take proper and immediate steps to file the transfer petition It is further stated that the Court rightly decreed the suit and the judgment wss delivered on merits and that it is not at all ex-parte orders.

( 5 ) THE learned V Additional judge took the view that explanation to Or. 17 rule 2 is applicable to the present proceedings and therefore the petition js not maintainable. Accordingly he dismissed the petition. The learned Judge dealt with the other relevant fpcts and observed that neither the affidavit of Sri Raghava Rao nor that of the appellant (5th defendant) has been filed.

( 6 ) THE learned counsel for the appellant submits that the approach of the learned Judge is erroneous in law.

( 7 ) THE stage at which the judgment was pronounced indicates that the appellant was set ex-parte in proceedings. The narration of the facts shows that the plaintiff completed his evidence on 17-8-1982. Thereafter, the defendant-appellant had to adduce his evidence and for that purpose only the matter was adjourned. But no evidence was adduced by the defendant and on the other hand a memo was filed to the effect that he wax moving the High Court to transfer the matter to some other Court. Therefore, the matter was posted to 18-9 1982. The learned counsel submits