The main legal point established in the judgment is the interpretation of the maintainability of an application under Order IX Rule 13, C.P.C. to set aside a decree passed after declaring the defendant ex parte.

Revision petitioner is the plaintiff in O.S. No. 109 of 1988 on the file of the Principal Munsiffs Court, Neyyatlinkara. The challenge in this revision is against an order whereby the court below has set aside the decree passed in the suit conditionally on payment of an amount of Rs. 100/- as costs. In the revision, the petitioner has contended that I.A. No. 186 of 1991 in which the court below has passed the impugned order was not maintainable and as such the impugned order is bad in law.

2. The suit in question after a protracted interlocutory proceedings was posted for appearance of parties to 6-12-1990. On that day the plaintiff alone appeared and on behalf of the defendant there was no representation and the suit was posted to 12-12-1990 for filing written statement. There was also a direction to the effect that no further time will be given for filing the written statement. On 12-12-1990 the counsel for the defendant reported no instructions. Defendant's name was called. He was absent and declared ex parte. After noting that written statement was not filed the court below heard the plaintiff and the suit was decreed as prayed for.. It was the decree so passed by the court below which was sought to be set aside as per LA No. 186 of 1991.

3. As the only question raised in the revision relates to the maintainability of IA No. 186 of 1991, it is not necessary to refer to the reasons stated in the affidavit for the failure of the defendant to appear on the relevant date and file the written statement as ordered. The only question to be considered is whether the application, LA. No. 186 of 1991 filed under Order IX Rule 13, C.P.C. is maintainable in the facts and circumstances of the case?

4. Learned counsel for the petitioner has contended that the decree passed in the suit is one under Order VIII Rule 10, C.P.C. and as such no application under Order IX Rule 1 S, C.P.C. will lie for setting aside such a decree. Only an appeal will lie in such cases. It was submitted that this Court has held so in the decision reported in Krishnadas v. Chathu (1989 (1) KLT605).

5. On the other hand, it was submitted on behalf of the respondent that on 12-12-1990 the defendant was absent and the court has specifically declared the defendant ex parte and has thereafter passed the decree in question. As such it cannot be considered as a decree passed under Order VIII Rule 10, C.P.C. It has to be treated just like any other decree passed ex parte liable to be set aside under Order IX Rule 13, C.P.C. Learned counsel has submitted that in such circumstances an application under Order IX Rule 13, C.P.C. is perfectly maintainable. In support of the above submission the learned counsel for the respondent relied upon a Division Bench decision of this Court reported in Manick Peter v. Surendranathan (1987 (2) KLT 328) and two other decisions referred to in the said decision.

6. The facts of the case decided by the Division Bench were more or less similar to that of the present case. That was also a case where the defendants failed to file writ ten statement on the day to which the suit was posted for filing the written statement. Defendants failed to file the written statement and the court declared the defendants ex parte and passed the decree and judgment noting the fact of non-filing of the written statement also. Afier referring to the relevant provisions and the decisions of the Madras and Karnataka High Courts, this Court has observed thus:

"On the failure of the defendants and their counsel to appear in court on the adjourned date of hearing of the suit, Us disposal under Order VIII Rule 10 C.P.C. is therefore to be treated as a disposal in accordance with Order XVII Rule 2. An ex parte decree passed under Order VIII Rule 10 is not to be treated differently from any other decree exparte liable to be set aside under Order IX, Rule 13, C.P.C."

7. In the case on hand also, the defendant failed to appear and file his written statement on the dat