The main legal point established in the judgment is the distinction between ex-parte decrees and judgments passed on merits, and the remedies available in cases where the judgment and decree are not ex-parte decrees.

1. The appellant-original defendant, has challenged the Order dated 6th March, 2017 whereby the learned Joint Civil Judge, Senior Division, Rajguru Nagar, Khed, dismissed the application under Order 9 Rule 13 of CPC for setting aside the judgment and decree dated 28th July, 2016 in Special Civil Suit No. 2 of 2016 (Old Spl. Civil Suit No.22 of 2014).

2. The brief facts relevant to decide this appeal are as under:

The respondent was the plaintiff and the appellant was the defendant in Spl. Civil Suit No.22 of 2014 filed in the court of Civil Judge, Senior Division, Pune and shall be hereinafter referred to as the plaintiff and the defendant respectively.

3. The plaintiff had filed a suit against the aforesaid defendant for recovery of money. The defendants on being served with summons, put in appearance through their Advocate and sought time to file the written statement. The defendant did not file the written statement despite opportunities given, hence on 23rd July, 2014, the trial Court passed ‘No written statement’ order and adjourned the matter for hearing.

4. The evidence of the plaintiff was recorded, arguments were heard, and the suit was adjourned for judgment. While the suit was pending for judgment, the defendant filed an application under Section 8 of the Arbitration Act (Exhibit 246). The suit was thereafter transferred to the Court of Rajguru Nagar, Khed. The defendant was directed to remain present before the Court at Rajguru Nagar on 8th January, 2016. The defendant did not appear before the said Court. The learned Judge dismissed of the application under Section 8 of the Arbitration Act on 1st February, 2016 and further by judgment dated 28th July, 2016 decreed the suit and directed the defendant to pay to the plaintiff a sum of Rs.1,28,75,943/with 12% pendente lite interest.

5. The defendant filed an application dated 21st October, 2016 under Order 9 Rule 13 of CPC for setting aside the judgment and decree dated 28thJuly, 2016. The plaintiff also filed an application under Section 39 r/w. Order 21 Rule 5 of CPC for transfer of the decree to New Delhi, which was allowed by Order dated 2nd January, 2016. The defendant challenged the said order as well as the order of dismissal of the application under Section 8 of the Arbitration Act. The petition challenging dismissal of application under section 8 was later withdrawn. The petition arising from order dated 2nd January, 2016 was disposed of by this court by Order dated 20th February, 2017 by directing the trial Court to decide the application under Order 9 Rule 13 within two weeks from the date of the order. The plaintiff was also directed not to initiate execution proceeding for a period of four weeks starting from 23rd February, 2017.

6. Pursuant to the said order, the trial court heard the parties on the application under Order 9 Rule 13 of CPC and by the impugned Order dated 6th March, 2017 dismissed the application mainly on the ground that the judgment and decree was passed under Order 8 Rule 5 of CPC and the judgment and decree not being ex-parte, the application under Order 9 Rule 13 was not maintainable. Being aggrieved by the said order, the defendants have filed this appeal.

7. Mr. V.N. Thorat, learned Senior Counsel for the defendant has submitted that though the defendant had not filed the written statement, the learned Judge had not passed the decree under Order 8 Rule 5 of CPC and had in fact called upon the plaintiff to adduce evidence. He, therefore, contends that the judgment was not under Order 8 Rule 5 of CPC. He submits that Order 17 Rule 3 applies when party to whom time was given fails to adduce and or take further steps. This provision is not applicable in the present case. Moreover, the defendant was not present on the date of the hearing. Hence the Court could not have passed a decree on merits by exercising powers under Order 17 Rule 3 CPC and that the only course available was to proceed under Order 17 Rule 2 of CPC. The learned Sr