Decree whether to be treated as ex-parte decree liable to be set aside.

ORDER:- An interesting question regarding the maintainability of the application filed by the respondent herein under Order 9, Rule 13, C.P.C. arises for decision in this civil revision petition. The plaintiff in O.S. No. 10813 of 1977, on the file of the VIII Asst. Judge, City Civil Court, Madras is the petitioner in this civil revision petition, which is directed against the order of the court below allowing an application in I. A. No. 1983 of 1979 in O.S. No. 10813 of 1977, filed by the respondent herein under Order 9, Rule 13, C.P.C. The petitioner sought to recover a sum of Rs. 10817.90 against the respondent herein on the basis of an agreement dated 11-5-1977, entered into between the respondent-company and the medical representatives. The suit was instituted on 21-12-1977 and posted on 18-2-1978 for first hearing. Thereafter, on 28-7-1978, the suit was posted for the filing of a written statement by the respondent. On that day, the written statement was not filed by the respondent and thereupon, the court proceeded to dispose of the suit as under-

"No representation made by the defendant. Suit decreed with costs as prayed for under Order 8, Rule 10 C.P.C."

On 1-8-1978, the respondent herein filed I. A. No. 1983 of 1979 under Order 9, Rule 13, C.P.C. and prayed for the setting aside of the ex parte decree passed on 28-7-1978. In support of that application, an affidavit was filed by one of the counsel who was appearing for the respondent to the effect that on 28-7-1978, when the written statement should have been filed, the senior counsel was not in station, and, therefore, the deponent to the affidavit had to attend to various cases in the Labour Court and that after finishing such work when he came to the VIII Asst. City Civil Court, he learnt that the suit had been called and the respondent had been set ex parte and an ex parte decree also had been passed. It was also further stated that on 27-7-1978, the draft written statement sent to the respondent for approval had been received with instructions to ask for a week's time for filing the written statement and, therefore, the counsel wanted to take a short extension of time for the purpose of filing a written statement. Claiming that the respondent had a good defence to the suit and that the non-representation of the respondent on 28-7-1978 was neither wilful nor deliberate but due to circumstances stated earlier, the respondent had prayed for the setting aside of the ex parte decree.

2. This application was opposed by the petitioner on the ground that as the suit was decreed under Order 8, Rule 10 C.P.C., the decree passed was one on merits and, therefore, the application to set aside the ex parte decree is not maintainable. It was also the further case of the petitioner that the respondent entered appearance on 25-3-1978, and the suit was adjourned to 6-7-1978 for the purpose of filing a written statement, when time was extended further for filing the written statement till 28-7-1978. On that day, when the case was called, since there was no representation, the suit, according to the petitioner, was decreed under Order 8, Rule 10 C.P.C., and therefore, it is not open to the respondent to apply under Order 9, Rule 13 C.P.C. on the footing that the decree that was passed was an ex parte one. A further objection was also raised by the petitioner that the remedy, if at all, that would be available to the respondent, was by way of an appeal and not an application to set aside the ex parte decree.

3. The learned VIII Asst. Judge, City Civil Court, Madras, who enquired into this application held that the decree passed against the respondent on 28-7-1978 was only on account of the nonappearance of the counsel as well as the party and the decree should, therefore, be construed only as an ex parte decree and not a decree on merits, and, therefore, the application under Order 9, Rule 13 C.P.C., would be maintainable. However, the ex parte decree was set aside on conditio