Wanchoo, C.J.—This is an appeal by Moolraj and others, who were plaintiffs, against dismissal of their suit by the Civil Judge of Jodhpur.

2. The history of the case may be narrated in order to understand the point involved. The suit was filed in April, 1951, and was based on a promissory-note. The written Statement by the defendant respondent was filed on the 8th of February. 1952. Thereafter 17th of April was fixed for replication and framing of issues. Issues were framed on that date and the case was then fixed for hearing on the 11th of August, 1952. On that date the plaintiffs were absent. One Mr. Ranchor Das appeared on their behalf and presented an application for adjournment on the ground that Moolraj, one of the plaintiffs, was seriously ill and the other two plaintiffs who were his sons could not come in view of his serious condition. The application was considered by the court and it pointed out that the counsel was not authorised to make that application as he did not hold a vakalat-nama from the plaintiffs. The court further held that sufficient cause was not shown why the plaintiffs had not summoned evidence. It, therefore, dismissed the application for adjournment and went on to say that the defendant also did not want to produce any evidence and that as the burden of proof of all the issues was on the plaintiffs and they had failed to discharge it, the suit was dismissed with costs The decree was accordingly prepared and the decree specifically says that the suit was dismissed under Order XVII, rule 3 of the Code of Civil Procedure. The present appeal is against this decree.

3. The first question that arises is whether the court was justified in passing the order under O. 17, R.3 on the merits in the circumstances of this case. O.17, R.3 says that—

"Where any party to as suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith."

before O. 17, R. 3 could apply, it has to be shown that time had been granted to the party for some purpose. The contention on behalf of the appellants is that they had not applied for any time to produce evidence and that 11th August was fixed in the ordinary course as the date for taking evidence. Learned counsel for the respondent contends that it must be assumed that even though there was no application by the plaintiffs at the time when the case was postponed from the 17th of April, 1952, to the 11th of August, 1952, it was done on the plaintiffs request and therefore O.17, R. 3 applies. We find from the order-sheet of 7th March, 1952, that 17th April, 1952, was only fixed for filing replication and for framing of issues. It was not fixed for the evidence of parties. After framing issues on the 17th of April the court gave time to parties to produce their evidence and this it was bound to do under Order XV, rule 3(2). Such grant of time under O. XV, R. 3(2) in our opinion is not contemplated under O. 17, R.3 The grant of time contemplated under Rule 3, of Order XVII is on application of the parties whether oral or written. The court, therefore, had no authority to proceed under O.17, R.3, C.P.C. The proper rule under which it should have proceeded was Rule 2 of Order XVII, because this was an adjourned hearing.

4. It is then urged on behalf of the respondent that if this was an order under O. 17, R. 2, C. P. C. on appeal lies to this court and the proper procedure for the appellants was to apply under O.9, R.9 to the trial court. It is also stated that in fact the appellants have applied to the trial court under O. 9, R. 9 and that application is pending disposal It is submitted that once it is held that the order passed by the court below could rightly be passed only under O.17, R.2, no appeal would lie and only an application under O. 9, R. 9 wo

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