The court has discretion to set aside an ex-parte decree and to proceed with the suit in accordance with the options available to it under Order 8, Rule 10 of the Code of Civil Procedure.

( 1 ) THE Bank of Maharashtra, respondent No. I in this appeal had filed a suit for the recovery of loans granted to defendants 1 to 9 in various accounts, these defendants are now the appellants in this case. The 10th defendant was the drawee of certain bills accepted by that defendant. which were subsequently dishonoured. On 16th January, 1985, the defendants were absent and the time granted to file the written statement had expired without any written statement being filed by any of the defendants. The learned Single Judge pronounced judgment against the defendants with costs and passed a decree for a sum of Rs. 2,46,870. 68. The liability of the 10th defendant was held to be Rs. 1,71,260. 00 with proportionate costs, and interest at the rate of 18 per cent pe r annum from the date of institution of the Suit till realisation. There was an application listed before the Court on that date, being 1. A. No. 63/85, moved by some of the defendants, which was dismissed in default.

( 2 ) DEFENDANTS I to 9 filed an application under Order 9, Rule 13 of the Code of Civil Procedure praying that the ex-parte decree should be set aside. This application was based on the fact that the learned counsel for defendants I to 9, Shri D. D. Sharma had been suddenly taken ill and was thus unable to appear on 16th January, 1985. It was stated that due to this sudden development he had been unable to inform the defendants to make alternative arrangements.

( 3 ) IN deciding this application, it was held that though there may be sufficient cause for non-appearance, this would be a merely technical view. It was noted that there had been a persistent default in filing the written statement.

( 4 ) THE learned Single Judge noted the provisions of Order 8, Rule 10 of the Code and called upon Mr. Sharma to satisfy him that there was some purpose in setting aside the ex-parte order dated 16th January, 1985. It was noted as follows:

"mr. Sharma stated that he could not file the written statement as the copies of the documents which were given to him by counsel for the plaintiff were not readable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . However, as the order dated 5-9-1984 would show the counsel for the plaintiff agreed to supply photo copies of the documents to the counsel for the defendants. This was done- But then the objection is that these documents were not readable. Mr. Sharma showed me these documents and in my view they are quite readable. In any case the record of the suit could have been inspected. "the order then proceeds to dismiss the application on the ground that no useful purpose would be served by setting aside the ex-parte order. It was observed that this was a fit case for the application of the provisions of Order 8, Rule 10 of the Code. This order is dated 26th April, 1985.

( 5 ) THE appeal directed against the order refusing to set aside the ex-parte order came before us as a consequence of the stay application relating to the prayer for stay which accompanied the appeal. We thought that this was a v cry short point which could be decided straightaway. So, we heard the appeal.

( 6 ) LEARNED counsel for the appellants urges that the learned Single Judge has erred in combining the provisions of Order 8, Rule 10 with the provisions of Order 9. Rule 6 of the Code. He has referred to a judgment of the Rajasthan High Court, Sewa Ram v. Misrimal and others, AIR 1952, Rajasthan 12, where a somewhat similar situation arose. In that case, when the Suit was called for hear ng, the defendant was absent, so the order was that the Suit should proceed ex-parte and the written statement should be struck off. An appeal was taken to the District Judge, who held that no appeal lay till the ex-parte orde