The judgment and decree under O. 8, R. 10, C. P. C. amount to an ex parte judgment and decree, attracting O. 9, R. 13, C. P. C. as an alternate remedy.

( 1 ) THIS is a Miscellaneous First Appeal by the defendants against the order D/-16-10-1981 passed by the 13th Additional City Civil Judge, Bangalore City, in Misc. No. 407/81 dismissing the petition filed under O. 9, R. 13, C. P. C. by the defendants.

( 2 ) THE respondent Bank filed a suit in O. S. No. 96/1977 on the file of the Principal Civil Judge, Bangalore, for recovery of the amount from the defendants. The defendants appeared before the court below on 8-8-1977 and also had engaged a counsel. The defendants took as many as 8 adjournments to file the written statement. The case was posted to 10-1-1978 for filing the written statement. Even on that day, the defendants did not file the written statement. Thus the Court proceeded under O. 8, R. 10, C. P. C. and passed the judgment and decree. The defendants filed an application under O. 9, R. 13, C. P. C. alleging that their lawyer wanted to file an application calling for better particulars and the Court did not permit them to file and so the case was posted later on on the same day for filing the written statement. At the adjourned time, the defendants were absent and thus the Court proceeded to pass the judgment in the absence of the defendants.

( 3 ) THE court below dismissed the petition. Hence the Miscellaneous First Appeal by the defendants.

( 4 ) THE question that would arise for consideration is whether the judgment and decree passed under O. 8, R. 10, C. P. C. would attract the operation of O. 9, R. 13, C. P. C. or whether the parties suffering such a judgment and decree would have only a right of Regular Appeal.

( 5 ) ORDER 8, R. 10, C. P. C. as it stands amended by the Amendment Act of 1976, reads as :-"procedure when party fails to present written statement called for by Court :- where any party from whom a written statement is required under R. 1 or R. 9, fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up. "rule 10 before it was amended reads as :-"where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. "the amendments carried out in R. 10 are that the written statement required to be filed must be one under O. 8, R. 1 or R. 9. Then the next amendment introduced is that the word 'permitted' has been used. The unamended R. 10 only gave discretion to the Court to pronounce a judgment while the amended section makes it mandatory for the Court to pronounce judgment against him. It further says that on the pronouncement of such judgment, a decree shall be drawn up. These words viz. , that "on the pronouncement of such judgment a decree shall be drawn up" are introduced by the amendment. It was not to be found in the old R. 10. Formerly if a judgment was pronounced under O. 8, R. 10, it was treated as an appealable order and O. 43, R. 1 (b) provided for an appeal. O. 43, R. 1 (b) is repealed. Therefore on account of the repeal of O. 43, R. 1 (b), the right of filing a Miscellaneous Appeal against the judgment pronounced under O. 8, R. 10 is taken away. The simple repeal of such a valuable right must have some meaning. Now the amended R. 10 speaks that "on the pronouncement of such judgment, a decree shall be drawn up" will have to be given some meaning especially in view of the taking away of the right of appeal provided by O. 43, R. 1 (b ). The definition of 'decree' given in S. 2 (2), C. P. C. stated that a decree shall not include any adjudication from which an appeal lies as an appeal from an order. So any judgment pronounced under the unamended R. 10 could not be followed by a decree within the meaning of S. 2 (2) because a Miscellaneous Appeal had been