JUDGMENT - DABHOLKAR N.V., J.:---Heard learned Counsel for the parties. Rule. Rule made returnable forthwith for hearing by mutual consent.

2. Order passed by 4th Additional District Judge, Jalgaon, on 19-3-2001 in Misc. Civil Appeal No. 99/2000 is being challenged by original plaintiff.

3. Regular Civil Suit No. 228/1996 was filed by present revision petitioner against present respondent for possession of rented premises under the provisions of Bombay Rent Act. The suit was decreed by judgment and order dated 16-3-1998 by Civil Judge (J.D.). Bhusawal. By Civil Miscellaneous Application No. 17/1998, respondent/defendant applied under Order 9, Rule 13 of Code of Civil Procedure for setting aside the judgment and decree passed on 16-3-1998 in the said suit. Second Joint Civil Judge (J.D.) Judicial Magistrate (F.C.). Bhusawal, by his order dated 18-9-2000 dismissed the application observing that the said judgment and decree was passed under Order 8, Rule 5(2) of Code of Civil Procedure and, therefore, application under Order 9, Rule 13 was not the remedy available to defendant.

This order was challenged by Misc. Civil Appeal No. 99/2000 before District Judge, Jalgaon, by defendant/respondent. The miscellaneous appeal was allowed by 4th Additional District Judge, Jalgaon, by the impugned order. He held that the judgment and decree passed in R.C.S. No. 228/1996 on 16-3-1998 was one under Order 9, Rule 6 r/w Order 17, Rule 2 of Code of Civil Procedure and consequently remedy under Order 9, Rule 13 for setting aside ex parte decree was available. Feeling that the medical certificate regarding illness of wife suffering from typhoid and jaundice from 1-3-1998 was sufficient cause for absence of defendant on 9-3-1998, the learned District Judge has allowed the application under Order 9, Rule 13 of Code of Civil Procedure thereby setting aside the judgment and decree passed on 16-3-1998 by Civil Judge (J.D.) Bhusawal, in R.C.S. No. 228/1996.

4. Advocate Shri Dube has attacked the impugned order with two fold arguments. According to him the judgment and decree, that was sought to be set aside was a decree under Order 8, Rule 5(2) and the learned District Judge was at an error in observing that the same was a decree under Order 17, Rule 2 r/w Order 9, Rule 6 of Code of Civil Procedure. According to Shri Dube, therefore, remedy under Order 9, Rule 13 was not at all available to defendant.

Shri Dube also states that the finding of learned District Judge, that there was sufficient cause for absence of defendant is erroneous. He, therefore, prayed to quash and set aside the order passed by learned District Judge and restore the order passed by Civil Judge (J.D.), Bhusawal on 18-9-2000 thereby confirming the ex parte decree.

Shri Dube has relied upon observations of this High Court in the matter of (Dhanwantrai v. Satish)1, 1999(1) Bom.C.R. (O.O.C.J.)97. This was a judgment delivered by Division Bench in view of conflicting views on the issue whether a decree passed under Order 8, Rule 5 or 10 of Code of Civil Procedure can be set aside by filing an application under Order 9, Rule 13 of Code of Civil Procedure. The Division Bench has ultimately observed that remedy of an application under Order 9, Rule 13 of Code of Civil Procedure is not available in the matters of decrees under Order 8, Rule 5 or 10 of Code of Civil Procedure. The only remedy available is by way of an appeal against the said decree.

5. Advocate Shri Mukul Kulkarni has not controverted this position, but his emphasis is upon the nature of the decree passed on 16-3-1998 that was sought to be set aside. According to Shri Kulkarni on the facts of the case that was a decree passed under Order 17, Rule 2 of Code of Civil Procedure and, therefore, all the consequences in Order 9 ought to follow. Impliedly, he urged that it is a decree passed ex parte and, therefore, remedy under Order 9, Rule 13 of Code of Civil Procedure was available to defendant Shri Kulkarni also urged that

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