An application under Order 9, Rule 13, C.P.C. is maintainable to set aside a decree passed under Order 17, Rule 2, C.P.C., but not a decree passed on merits under Order 17, Rule 3, C.P.C.

The Judgment was delivered by :

This appeal arises as against the order made in I.A. No. 14298 of 1989 on the file of the learned Third Assistant City Civil Judge, Madras. I.A. No. 14298/89 was filed under Order 9, Rule 13, C.P.C. by the petitioner/defendant for setting aside the ex parte decree made in the suit. The suit is for delivery of vacant possession of suit property, namely, house and premises bearing Door No. 24, Munuswamy Achari Street, Perambur, Madras 11 to the plaintiff/respondent herein and for directing the defendant/petitioner herein to pay a sum of Rs. 12, 600/- towards past mesne profits with interest at 12% P.A. from the date of the plaint till the date of realisation and also future mesne profits at the rate of Rs. 350/- per month from the date of the plaint till the date of delivery of vacant possession.

2. The respondent herein is a purchaser of the suit property in an auction held under the powers conferred upon the original mortgagee under Section 69-A of the Transfer of Property Act. The respondent, after getting the sale deed in his favour, filed the suit for possession and for other reliefs as stated above. The petitioner herein as defendant filed a written statement in the suit contending inter alia that the sale is not valid and that the respondent herein is not entitled to delivery of possession. The suit was included in the ready list for trial and the suit was posted for evidence of the plaintiff/respondent herein to 25-9-1987. Since the petitioner's counsel was engaged in the High Court, he could be present before the trial Court to proceed with the case and the suit was taken up at 3.45 p.m. and since there was no evidence from the side of the petitioner herein, the suit was posted for judgement to 29-9-87. Accordingly, the suit was decreed on 29-9-87 by the trial Court. This application is filed to set aside the ex parte decree made on 29-9-87. The respondent herein filed a counter affidavit in the trial Court contending as follows : The application I.A. No. 14298/89 was filed on 5-10-87 within a period of 30 days from the date of ex parte decree made on 29-9-1987. Put the application appears to have been registered only in the year 1989 as I.A. No. 14298/89. The suit was taken up for trial on 16-9-87 and it was adjourned to 24-9-87. According to the respondent herein, the decree made on 29-9-87 was made after contest and that it was not an ex parte decree and that the remedy open to the petitioner herein is to file a regular appeal and not to file an application like this for setting aside the decree under Order 9, Rule 13, C.P.C.

3. The trial Court has narrated the various stages of the suit in its order. The plaint was presented on 16-12-85 and the summons were sent on 13-2-86. The defendant/petitioner herein entered appearance on 17-2-86 and she filed a written statement on 12-11-86. Issues were framed on 10-12-86 and the suit was included in the specialist on 16-9-87. The plaintiff/respondent herein was examined as P.W. 1 and the suit was adjourned to 17-9-87 and the petitioner's counsel was not present before the trial Court on 17-9-87 and so, the suit was, adjourned to 18-9-87. P.W. 1 was recalled and examined in part. Then the suit was adjourned to 29-9-87 and on that date, the plaintiff/respondent herein was examined in full. Then the suit was adjourned to 23-9-87 for the examination of the defendant/petitioner herein. On 23-9-87, the petitioner's counsel was not present in court. The lower court waited till about 5.00 p.m. and as the counsel for the petitioner did not appear, the suit was adjourned to 24-9-87 for the evidence of the petitioner herein and even on that date, counsel for the petitioner did not appear in the forenoon and so, the matter was passed over till about 3.45 p.m. and even then, counsel for the petitioner did not appear before the lower court. But the petitioner herein was present in the lower Court. But she could not proceed with the suit and so, argu