Bapna, J—This is a revision against an order of the learned District Judge, Kotah, dated the 13th of October 1950. The non-petitioner Nathulal instituted a suit against Banwarilal petitioner in the Court of Munsif, Sultanpur. The plaintiff did not appear on 22nd of November, 1949, which was an adjourned hearing. The court recorded some evidence for the defence and dismissed the suit as if on merits. The plain tiff, however, considered the order to be one under Order XVII Rule 2 read with Order 9 Rule 8 of the Civil Procedure Code and presented an application for restoration of the suit on the 23rd of November, 1949. The Munsif rejected the application holding that the suit had been decided on merits under Order XVII Rule 3 of the Code and the remedy was by way of an appeal. On appeal, the learned District Judge was of opinion that the plaintiff had never asked for an adjournment and the proceedings of Order XVII Rule 3 were inapplicable. He held that in spite of the learned Munsif proceeding to decide the case as on merits, it should have been considered to be one as of dismissal for default of appearance and the petition for restoration was properly presented. He remanded the case

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