1. A single application can be filed for setting aside three ex parte decrees in consolidated suits. 2. An order passed under Order 17, Rule 2 of the Code of Civil Procedure is not an order under Rule 3 and therefore an application under Order 9, Rule 13 is competent.

This appeal is by the defendants.

2. The plaintiffs had brought two suits, namely, Title Suit No. 18 of 1959 and Rent Suit No. 3 of 1959, the first one being for ejectment from the suit houses and the second one for rents, and obtained decrees in their favour. Ultimately these decrees were affirmed by the High Court. For the subsequent periods the plaintiffs filed three suits, namely, Money Suits Nos. 1/66, 3/69 and 73/62 for realisation of rents from the defendants. The suits were fixed for peremptory hearing on 13-5-1971 on which date on the prayer of plaintiff No. 1 the suits were ordered to be heard as analogous by the Assistant District Judge. Dibrugarh before whom the cases were pending. On that date the plaintiffs also filed an application for adjournment on the ground of illness and the suits were ultimately fixed for hearing on 1-7-1971. On that day a petition was filed on behalf of the defendants for adjournment on the ground that defendant No. 1 was lying ill at Calcutta. Plaintiff No. 1 filed objection to that petition, inter alia, on the ground that the allegation of defendant No. 1 that he was lying ill at Calcutta was false. The learned Assistant District Judge, after hearing, rejected the application and the suits were ordered to be taken up for hearing. The counsel for the defendants retired from the proceedings stating that he had no further instructions to proceed with the suits. Accordingly the suits were taken up exparte and the evidence of Sri Jogesh Chandra Das, plaintiff No. 1, was recorded in Money Suit 73/62 which was the main case and that evidence was taken into account in all the three suits already ordered to be heard as analogous. The suits were decreed ex parte by the same order. Separate decrees were ordered to be prepared.

3. The defendants then filed a single application under Order 9, Rule 13 of the Code of Civil Procedure for revival of the suits decreed exparte. The plaintiffs filed objection. The material objections were- (i) that by one application the three exparte decrees cannot be set aside and as such the application was not maintainable in law, and (ii) that the impugned order was one under Order 17, Rule 3 against which only an appeal was competent and no application under Order 9, Rule 13 is maintainable.

4. The plaintiffs filed an application for taking the evidence of defendant No. 1 on commission at Calcutta. Shri Jogesh Chandra Das, Plaintiff No. 1, submitted before the Court that he would confine his objection only to the two questions of law mentioned above and that defendant No. 1 need not be examined on commission.

5. The learned Assistant District Judge, after hearing both the parties, held that one petition under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the three exparte decrees was incompetent. On the second point he held that the impugned orders were under Order 17, Rule 3 and as such the application under Order 9, Rule 13 was incompetent.

6. Shri P. Choudhuri, learned counsel appearing for the appellants, submits that the order of the learned Court below is erroneous. On the first point he submits that although the petition under Order 9, Rule 13 was one it was in respect of all the three suits decreed ex parte. The petition at page 4 of the paper book shows that the defendants in the petition mentioned all the three suits and gave their numbers and in the prayer portion it was mentioned "your honour will be further pleased to restore the suits to file to be heard on merit".

7. In support of his contention Mr. Choudhuri cites AIR 1947 Nag 248, in which it has been held :

".........The legal effect of a de facto consolidation is usually achieved by two suits being tried together by consent of parties and with the approval of the Court. After consolidation there is only one case, and the suit consolidated has no independent existence for trial. Both the suits should be tried in one trial and should be disposed of by one judgment and decree. T