This is an appeal against an order of the City Judge Srinagar refusing to set aside an ex-parte decree passed by his predecessor.

The facts giving rise to the present appeal may be briefly summarized as follows: -

The plaintiff respondent brought a suit for recovery of Rs.4000 from the defendant on the allegation that the defendant had agreed to construct a house for the plaintiff and had taken an advance of Rs.2000 for this purpose. It was further stipulated between the parties that if the defendant was unable to construct the house, he would pay damages of Rs.2000. Hence the suit for recovery of the amount mentioned above. The suit was contested by the defendant, to begin with, mainly on the ground that the plaintiff did not perform his part of the contract in getting the site plans approved by the Municipality and that the defendant had collected materials which were wasted Issues were framed in the case the burden of which was placed on the defendant. The defendant examined three witnesses and thereafter it appears that the case was adjourned to several dates and ultimately on 7-3-1962, as the defendant had not produced any evidence, his evidence was closed and the court proceeded to take the evidence of the plaintiff. It may be mentioned that on this date the defendant had not appeared. The case was then adjourned to 27-3-1962 when the plaintiff stated that he did not want to lead any evidence excepting his own statement and the case was fixed for 16-4-1962 for the statement of the plaintiff. In the meantime, the defendant preferred a revision before this court and the trial court adjourned the case for several dates as the file was summoned by the High Court. Ultimately when the revision was disposed of, the trial court took up the case on 17-7-1962 when the plaintiff was present and adjourned it to the next day i.e. 18-7-1962. On this date, the plaintiff was present but the defendant was absent. The statement of the plaintiff was recorded by the court and the suit was decreed ex-parte. The trial court mentioned in its order that it was decreeing the suit ex-parte under Order 17 rule 3 C. P. C. Thereafter, an application was made before the trial court for setting aside the ex parte decree. This application has been dismissed by the order of the court which is the subject matter of this appeal.

The trial court appears to have dismissed the application filed by the defendant for setting aside the ex-parte decree on the ground that the decree having been passed under Order 17 rule 3 C. P. C. the order was appealable and the provisions of Order 9 C. P. C did not apply to this case.

In support of the appeal Mr. Bhan submitted that the order of the trial court passing ex-parte decree against the appellant could not be construed to be one under Order 17 rule 3 C.P.C. but would be an order under Order 17 rule 2 C. P. C. and, therefore, the provisions of Order 9 Rule 13 C. P. C would apply. In support of his argument he has relied on : -

A. I. R. 1947 Oudh 84; A. I. R. 1948 Madras 80 and A. I. R. 1961 A. P. 201.

1 In our opinion, the contention of Mr. Bhan appearing for the appellant is well founded and must prevail.

Order 17 rule of the Code of Civil Procedure runs: -

"Where any party to a 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."

From a perusal of this provision, it is manifest that two conditions first be satisfied before an order can be said to have been passed under this Rule.

(i) That the party concerned must have committed a default either by not producing the evidence which it is required to produce or not performing any act which it is required to do or not doing any other act which is required to be done for the further progress of the suit.

(ii) That the momen