Petitioners are defendants in O.S.342/00 on the file of II Additional Sub Court, Ernakulam.

Respondent is the plaintiff. Suit was filed as provided under Order XXXVII of Code of Civil Procedure on 29.6.02. As defendants were absent, they were set parte and a decree in favour of respondent was passed. Petitioners filed I.A.3712/02 an application to set aside the ex-parte decree and I.A.3713/02 an application to condone the delay. It was contended by petitioners that affairs of first petitioner firm was looked after by second petitioner Managing Partner and he was contesting the case for all the defendants and on 29.6.02 defendants could not appear in court as second petitioner was laid up due to amoebic dysentery and was under the treatment of a doctor and therefore ex-parte decree is to be set aside. It was contended that delay of 49 days in filing the application was not willful but due to the illness of second petitioner and in such circumstance, delay is to be condoned.

Respondent filed an objection disputing the case of petitioners and contending that there is no sufficient cause either to condone the delay or to set aside the ex parte decree. It was contended that an application filed under Order IX Rule 13 is not maintainable, as an application could only be filed as provided under Rule 4 of Order XXXVII. Learned Munsiff without relying on the medical certificate produced by petitioners and holding that there is no sufficient cause either to condone delay or for the failure of petitioners to appear when the suit was decreed ex parte, dismissed both the applications by common order dated 31.1.05. The order is challenged in this revision filed under section 115 of C.P.C.

2. As rightly pointed out by learned counsel appearing for petitioners when petitioners have no right of appeal against an order passed under Rule 4 of Order XXXVII and no appeal is provided against an order passed under Rule 4 of Order XXXVII, under Order XLIII, the only remedy available to the petitioners is to file a revision as provided under section 115 of C.P.C. Therefore revision is maintainable.

3. When a revision is filed challenging dismissal of an application to set aside the ex-parte decree, in that revision petitioners are entitled to challenge the order dismissing the application to condone the delay in filing the petition to set aside the decree eventhough no separate revision is filed challenging that order.

Moreover, both the petitions were dismissed by a common order. Petitioners paid separate court fee for both the reliefs. In such circumstance, revision is maintainable.

4. Rule 4 of Order XXXVII provides that after the decree, court may under special circumstances set aside the decree, and if necessary stay or set aside execution, and may give leave to defendants to appear to summons and to defend the suit, if it seems reasonable to the court so to do and on such terms as the Court thinks fit. Under Rule 7 save as provided by the order, the procedure in suits instituted under Order XXXVII, shall be the same as the procedure in suits instituted in the ordinary manner. Therefore though petition was filed under Order IX Rule 13 to set aside ex parte decree and it was not specifically shown as an application filed under Rule 4 of Order XXXVII, learned Munsiff rightly considered the application as an application filed under Rule 4. When an ex-parte decree is passed, defendants are entitled to apply to set aside ex-parte decree as provided under Rule 4, if defendants could satisfy the special circumstances as provided under Rule 4.

5. Then the question is whether there is sufficient reason for the absence of petitioners on the day when the suit was decreed ex-parte and whether there is sufficient reason to condone delay of 49 days in filing application.

6. Though there are four defendants first petitioner is the firm and petitioners 3 and 4 are mother and wife of second petitioner who is the Managing Partner of first petitioner firm.

It is