KUMARASWAMI SASTRY J.

( 1 ) THIS revision petition arises out of an application filed by the Second defendant (petitioner before me) under Order 9, R. 13 C. P. C.

( 2 ) THE facts material for the purpose of appreciating the contentions raised before me are that O. S. 193/1957 was posted for trial on 2-1-1960. The second defendant filed an application for adjournment on that date. Rejecting his petition, he was set ex parte. After completing the recording of the deposition of P. W. 1, the trial court proceeded to deliver the judgment. It is to set aside that decree that the petition was filed under Order 9, Rule 13 C. P. C. by the second defendant.

( 3 ) THIS petition was resisted by the plaintiff not only on merits but also on the ground that the decree passed on 2-1-1960 falls under Order 17, Rule 3 C. P. C. and as such no application under Order 9, Rule 13 C. P. C. lies.

( 4 ) THE trial court upholding the contention of the plaintiffs dismissed the petition. It held that the judgment and decree dated 2-1-1960 fell under Order Rule 3 C. P. C. and therefore, no application under Order 9, R. 13 C. P. C. was maintainable. It did not decide the application on merits.

( 5 ) DISSATISFIE

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