A decree passed after consideration of evidence, though in the physical absence of the party, is not an ex parte decree in view of the legal fiction introduced by the explanation appended to Rule 2 of Order 17, C.P.C. that such party though actually and physically absent should be deemed to be present.

T. R. Handa, J.—The petitioner herein has invoked the revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure to seek the quashing of the order dated 14-9-1979 recorded by the Sub-Judge, Kullu, whereby the learned Sub-Judge allowed the application of the respondent purporting to have been made under Order 9, Rule 13, C. P. C. and set aside the decree earlier passed in favour of the petitioner and against the respondent on 24th August, 1978.

2. The material facts which are relevant for the purposes of this petition are clearly borne out from the record and are beyond the pale of controversy. These facts show that the suit giving rise to these proceedings was filed by the petitioner-plaintiff against the respondent-defendant for the recovery of Rs. 26,507 66 on the basis of a pronote. The suit was filed in May, 1974. The respondent-defendant contested the suit and on the pleadings of the parties two issues were struck by the trial Court. The parties were thereafter called upon to produce their evidence in respect of their respective contentions. The petitioner-plaintiff closed its evidence on 7-1-1975 and thereafter the case had been adjourned from time to time for the evidence of the respondent-defendant. After availing of several opportunities for producing his evidence, some even on payment of costs, the respondent-defendant failed to examine a single witness till 7-4-1976 when he moved an application before the trial Court under the provisions of the Himachal Pradesh Agricultural Relief of Indebtedness Act praying that proceedings in the suit be stayed as he was a marginal farmer within the meaning of that Act and no decree could be passed against him. That application was ultimately rejected by the learned trial Court vide its order dated 25-6-1977. The suit was then adjourned to 12-9-1977 for evidence of the defendant-respondent. It was later only on 29-5-1978 that the defendant examined two of his witnesses. After these two witnesses were examined, the defendant prayed for yet another adjournment on the plea that he was to produce only one more witness. That prayer of the plaintiff was allowed by the trial Court on the express condition that the defendant would on the adjourned hearing produce his third witness at his own responsibility. The case was then adjourned to 24-8-1979 for remaining evidence of the defendant. On the adjourned date, that is, 24-8-1978 neither the defendant nor his witness put in appearance. The counsel for the defendant, however, appeared on his behalf and prayed for an adjournment. In support of this prayer of adjournment no reason was assigned and the learned trial Court rightly declined this request for adjournment. It appears that after the request for adjournment was declined by the trial Court, counsel for the respondent-defendant withdrew from the case without leave of the court and without assigning any reason. Thereafter the trial Court proceeded with the trial of the suit. It recorded the statement of the plaintiff in rebuttal, heard arguments addressed by the counsel for the plaintiff and pronounced its judgment on merits there and then. The judgment of the learned trial Court, it may be observed, discussed the entire evidence adduced in the suit on either side and was thus delivered on merits. 3, Subsequently on 15-9-1979 the respondent-defendant filed an application under Order 9, Rule 13, C. P, C. alleging therein that the suit had been decreed against him ex pane and praying that the ex pane decree be set aside. He pleaded that he could not attend the court on 24-8-1978 on account of his eye operation The petitioner-plaintiff resisted that application, inter alia, on the ground that the application under Order 9, Rule 13, C. P. C. was not maintainable as the decree had been passed under Order 17, Rule 3, C. P. C. and the proper remedy for the respondent-judgment debtor was to file an appeal against that decree. On. merits also the petitioner-pla