The judgment clarified that a decree passed under O.8 R.10 CPC was not equivalent to an exparte decree under O.9 R.13 and could be challenged by filing an appeal. Additionally, the court emphasized the peculiar facts of the case, which rendered the decree unchallengeable by filing an application under O.9 R.13 or even an appeal.

1. The plaintiff in a suit for enforcement of his right of pre-emption in relation to the suit property, originally owned by the plaintiff and defendants 2 to 7 as co-owners, and for a perpetual injunction to restrain the first defendant in whose favour a sale deed has been executed by defendants 2 to 7. "from interfering in any manner with the suit property either by himself or through defendants 2 to 7", is the revision petitioner.

2. Failure on the part of the defendants to file the written statement resulted in the suit being disposed of under R.10 of O.8 CPC. The respondents thereupon moved I.A. Nos. 3319 and 3320 of 1987 (identical relief is sought for in these petitions) for an order setting aside the exparte decree. These applications have been allowed by the common order under challenge.

3. The learned counsel for the respondents raised a preliminary. objection that the revision is not maintainable because the order under challenge is an appealable one. In support of this contention be made reference to 0.43 R.1 (d) CPC. This rule provides that an order under R.13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed exparte is an appealable order. It is thus clear that no order allowing the application under Order IX R.13 is appealable and if that be so, the revision is maintainable.

4. As already noted the suit was decreed in terras of 0.8 R.10 CPC. It provides that where any party from whom a written statement is required under R.1 or R.9 fails to present the same within the time permitted or fixed by the Court, as the case may be the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up. A reference in this connection to 0.8 R.1 is relevant. This Rule, prior to the amendment by the Amending Act of 1976 did not make it obligatory to file a written statement at or before the first hearing or within such time as the court may permit. But by the Amending Act of 1976 the words "may and if so required by the Court" in the unamended Rule have been omitted.

5. After the amendment of this Rule, the defendant thus is obliged to file the written statement either at or before the first hearing or within such time as the court may permit. The cumulative effect of R.1 and 10 of 0.8 CPC. therefore is that where the defendant who is obliged to, file the written statement fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall he drawn up

6. It is not the case of the respondents that they have filed written statement. On the other hand they do concede that though they received the summons, they had not filed written statement. The suit therefore has been decreed in terms of Rule 10 of O.8 CPC.

7. Judicial pronouncements would show that a decree passed under 0.8 R.10 without any written judgment on merits could be treated as an exparte decree coming within the meaning of 0.9 R.13 and as such an application to set aside such a decree under 0.9 R.13 is maintainable. In other words, it is not a condition precedent that a decree shall be one passed after declaring the defendant exparte under R.6 of O.9. That means even a decree passed under O.8 R.10 can be treated as an exparte decree within the meaning of O.9 R.13. (See Pokku v. Ammini, 1987 (2) KLT 308) and N. Jayaraman v. Glaxo Laboratories India AIR. 1981 Mad. 258).

8. These judgments-it is discernible therefrom were rendered without considering the scope of S.58 of the CPC. Amendment Act, 104 of 1976 amending R.10 of 0.8 inserting the words" shall pronounce judgment and on the pronouncement of such judgment a decree shall be drawn up". Prior to this amendment it was not mandatory that the court shall pronoun