JUDGMENT - M.B. SHAH, C.J.:---The learned Single Judge by his order dated 10th November, 1997 has referred the matter to a Division Bench for deciding question "whether a decree passed in the absence of the defendant and his Counsel is a decree passed under Order IX, Rule 6 or is it a decree passed under Order VIII, Rule 5 if the same is also passed on the ground that the written statement has not been filed."

2.Main controversy is that whether a decree passed under Order VIII, Rule 5 or 10 of the Code of Civil Procedure) (C.P.C., for short) can be set aside by filing an application under Order IX, Rule 13 of C.P.C. The learned Judge has referred to various decision of this Court, wherein justice Lodha Vyas, as he then was, Justice Palshikar and Justice Lodha have taken the view that a decree under Order VIII, Rule 5 can only be passed in presence of the defendant, on account of failure to file Written Statement. Justice Kapadia has held that a decree under Order VIII, Rule 5 can be passed even in absence of defendant. From the referring judgment, it appears that a contention was raised that such a decree passed under Order VIII, Rule 5 can be set aside by filing an application

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