An exparte decree passed under O.8 R.10 CPC is maintainable under O.9 R.13, and the party seeking to set it aside must demonstrate sufficient cause for their absence in court.

1. This appeal by the defendants is against the dismissal of their application to set aside the exparte decree passed in the suit. The suit is for recovery of Rs. 32,000/ with interest on the basis of six promissory notes executed by the defendants in favour of the plaintiff. The defendants were duly served with summons in the suit. All the defendants entered appearance on 29-6-1984. No written statement was filed on 6-7-1984 the date fixed for the first hearing of the suit as required by 0.8 R.1 CPC. The defendants applied for time for filing written statement and the court on 6-7-1984 granted them time till 6-8-1984. The defendants on 6-8-1984 prayed for further time and the court granted time till 19-9-1984 for the defendants to file their written statement. The case was posted to 19-9-1984. No written statement filed even on 19-9-1984. The defendants and their counsel were absent and the court on the same day pronounced judgment under 0.8 R.10 CPC decreeing the suit as prayed for on the basis of Exts. Al to A8 marked and proved by affidavit of the plaintiff.

2. An application to set aside the exparte decree was filed on 25-9-1984 supported by an affidavit by the counsel who had entered appearance on behalf of the defendants. This petition was dismissed by the lower court on the ground that a decree passed under O.8 R.10 CPC is not an exparte decree and a petition under 0.9 R.13 CPC will not lie to set aside such a decree. R.10 of 0.8 CPC as it stood prior to the amendment by the Civil Procedure Code Amendment Act 104 of 1976 reads:

"Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."

3. An order under R.10 was appealable under S.104 read with under 0.43 Rule R.1(b) CPC. The amended Rule reads:

"0.8 R.10 Procedure when party fails to present written statement called for by Court:- 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)."

4. A right of appeal provided under O.43 R.1(b) was taken away by deletion of Sub- Clause (b). The decree passed in the present case is in conformity with the requirements of 0.8 R.10 as amended in 1976. For the absence of the defendants and their counsel, it is also a decree exparte. O.9 R.13 CPC enables the defendants to apply to the court to set aside an exparte decree against him "if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing" and the court is empowered to "make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit."

5. Merely for the reason that the decree in the present case follows a judgment under 0.9 R.10 CPC for the failure of the defendants to file a written statement within the time permitted by the court it cannot be said that the decree is not an exparte decree. The defendants and their counsel were absent on the date on which the suit was posted for hearing and for the reason that the defendants had failed to file the written statement, a judgment was pronounced and a decree was drawn up against them in their absence. The Madras High Court in N. Jayaraman v. Glaxo Laboratories India Ltd. (AIR 1981 Mad. 258) and the Karnataka High Court in M/s. Kuvaro Industries, Bangalore v. State Bank of Mysore (AIR 1985 Karnataka 77) have taken the view that the decree in similar circumstances is exparte and a petition to set aside the same under O.9 R.13 is maintainable. The Supreme Court in Prakash Chander v. Janki Mancha