JUDGMENT - R.M.S. KHANDEPARKAR, J.:---Heard the learned Advocates for the parties. Admit. By consent, heard forthwith.

2. The appellants challenge the order dated 23rd July, 2001, rejecting the application for condonation of delay in filing the application under Order IX, Rule 13 of C.P.C. The trial Court has rejected the said application solely on the ground that the application under Order IX, Rule 13 was not maintainable in view of the decision of the learned Single Judge of this Court in the matter (Shaikh Chand Rahimbhai v. Annasaheb Trimbakrao Bobde)1, reported in 2001(Supp. 2) Bom.C.R. (A.B.)113. Apparently, the Court below has not at all considered whether the appellant has made out sufficient cause for condonation of delay or not.

3. Upon hearing the learned Advocates and on perusal of the record, following points arise for consideration :

1. Whether the application for condonation of delay, in the facts and circumstances of the case, could have been disposed of merely holding that the application under Order IX, Rule 13 of C.P.C. was not maintainable on the ground that the decree passed was not an ex parte decree within the meaning of provisions of Order XVII, Rule 2 of C.P.C.?

2. Whether the Court below could have disposed of application for condonation of delay without considering the issue as to whether the applicant has made out sufficient cause for condonation of delay or not?

4. Undisputedly, the facts are that the suit was disposed of in the absence of the appellants and without any written statement having been filed by the appellants even though the appellants were duly served by summons in the suit. Undisputedly, the appellants have disclosed various reasons for their failure to contest the proceedings and it is not necessary to consider the same in the appeal. Suffice it to say that the decree was passed in the absence of the appellants without any evidence being led by the appellants in the matter. There was neither pleadings on behalf of the appellants nor any material placed on record by the appellants in support of any defence of the appellant in relation to the case pleaded by the respondents-plaintiffs. In view of the decision of Apex Court in the matter of (Prakash Chander Manchandra and another v. Smt. Janki Manchanda)2, reported in A.I.R. 1987 S.C. 42, and followed by this Court in unreported decision of this Court in the matter of (D. Venkatesh Kumar v. M/s. B.M. Sahani)3, in Civil Revision Application No. 1370 of 2000 decided on 11th July, 2002, it is clear that once the Court proceeds to pass decree in the suit in the absence of the defendant and in the absence of any evidence having been led by the defendant in the matter, such a decree has to be construed having been passed in exercise of power under Order XVII, Rule 2 of C.P.C. as an ex parte decree which can be subjected to an application under Order IX, Rule 13 of C.P.C.

5. The attention of the learned Single Judge in Shaikh Chand v. Annasaheb Trimbak Bobde's case (supra) was not drawn to the decision of the Apex Court in A.I.R. 1987 S.C. 42 and, therefore, the rule in the said Shaikh Chand's case cannot be considered to be a good and binding law upon this Court. In A.I.R. 1987 S.C. 42 it was held that :

"It is clear that in case where a party is absent only course is mentioned in Order 17(3)(b) to proceed under Rule 2. It is therefore clear that in absence of the defendant, the Court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the

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