A decree passed in the absence of a party, despite partial cross-examination of the opposing party, is an ex parte decree, allowing for an application under Order 9 Rule 13 to set aside the decree.

1. ON the date fixed for hearing of a defendant's application under Order 9 Rule 13 of the Code of Civil Procedure, the defendant prayed for an adjournment on the ground of the inability of his lawyer to attend the Court. The prayer for adjournment having been refused and the defendant therafter taking no further step to prosecute the application, the same was dismissed for default and the defendant has now filed is appeal against the said order of dismissal.

2. APPEARING for the plaintiff respondent in support of the order of dismissal, the learned Counsel Mr. R. K. Sanyal, has urged that as the decree sought to be set aside was not an exparte but a contested one, an application under Order 9 Rule 13 could not lie. Mr. Sanyal has drawn our attention to the certified copy of the decree where it has been noted in the ordering portion that "the suit is decreed on nominal contest. It is obvious that if the suit was decreed on contest, whether*" nominal or substantial, no application could lie for setting aside the same under Order 9 Rule 13 as the said Rule on its express terms would apply only "in any case in which a decree is passed exparte".

It appears from the Order decreeing the suit, being no, 21 dated 17. 1. 1984, that "the suit was fixed for hearing on 20. 12. 1983. P. W. I badrinarayan (i. e. the plaintiff) was examined and partially cross-examined on that day. He was to be cross-examined on the following day. The defendant filed an application for adjournment on 21. 12. 1983. It was considered and rejected. Nobody appeared for the 'defendant for cross-examining the witness. Defendant was found absent on call". And the Suit was then eventually decreed by the trial-Judge on a consideration of the evidence of the plaintiff who was only cross-examined in part and other materials on record by the aforesaid Order dated 17. 1. 1984. Could it be said to -have been decreed on contest to rule out applied on of Order 9 Rule 13 of the Code of Civil Procedure which undisputedly applies only to exparte decrees?

3. AS the suit was disposed CM not at the first hearing but at the adjourned hearing, the relevant provisions for the determination of this question would be the provisions of Rule 2 and Rule 3 of Order 17, which are as follows :

"2. Where on any day (to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such Other order as it thinks fit. Explanation : Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the court may, in its discretion, proceed with the case as if such party were present. 3. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform, any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default a) If the parties are present, proceed to decide the suit forthwith; or b) If the parties are,, or any of them is, absent, proceed under Rule 2".

4. THE words many party to the suit to whom time has been granted" and "for which time has been allowed" in Rule 3 would at once make it clear that Rule 3 can apply when the case has been adjourned on time being grant to a party at his instance to enable him to perform any of the acts specified in Rule 3. When the case has been adjourned, not on the prayer of a party, but by the court on its own for want of time or for the working hours being over or for some other reasons, the provisions that would govern the adjourned hearing the provisions of Rule

2. In the case at hand, the case was adjourned on 2 0. 12. 1983 by the court on its own for further hearing to 21. 12. 1983 and that being so, a failure of the defendant to appear and to pr