Interpretation of Rule 2 and Rule 3 of Order 17, Civil Procedure Code in determining whether a decree passed in the given circumstances is an ex parte decree.

Venkatasubba Rao, J.

1. The short question is, which is the provision that applies to the facts - Rule 2, or Rule 3 of Order 17, Civil Procedure Code? The lower Court has held that the suit could not be deemed to have been decided ex parte, that the provision applicable therefore is Rule 3 and that the petitioners remedy, if any, would be by way of preferring an appeal against the decree passed. Consequently the application under Order 9, Rule 13, filed upon the footing that the decree was passed ex parte, was rejected. We are clear that the lower Courts order cannot be sustained.

2. On the 14th July, the first witness for the defence was examined and at the defendants request the case was adjourned to the 30th July. On that day, two further witnesses on their behalf were examined and the case was again at their request adjourned to the 6th August. On the adjourned date, neither the defendants nor their vakil was present; another Advocate appearing on their vakils behalf applied for an adjournment on the ground that some witness had not come and that the vakil on the record was ill. The Court refused the adjournment and passed a decree. The question is as already stated, is the decree passed in these circumstances an ex parte decree or not?

3. To define the line of division between Rule 2 and Rule 3 of Order 17, may in some cases be difficult, but in this case, the facts do not seem to present much difficulty. The learned Judges order is not particularly lucid, but the ground of his decision apparently is, that as the adjournment of the 30th July, was granted for the specific purpose of enabling the defendants to examine a certain witness, the provision that applies is Rule 3, No doubt that rule provides that where time has been granted for the performance of an act, such as, causing the attendance of a witness and the party fails to perform that act, in such a case the Court may, notwithstanding such default, proceed to decide the suit on the merits; but that does not mean that where the parties themselves fail to appear, the operation of the more specific provision contained in Rule 2 is excluded. In other words, the proper way of construing Rule 3 would be, that where no default occurring under Rule 2, default occurs under Rule 3, the Court should proceed under the latter provision and dispose of the case on the merits; but if the default consists in non-appearance, it is Rule 2 which deals with such a case specifically, that in terms applies. It is unnecessary to cite authority beyond referring to Pichamma v. Sreeramulu (1917) 34 M.L.J. 24 : I.L.R. 41 Mad. 286 .

4. In is next contended that as some vakil, no matter who, appeared before the Court for the defendants, the decree could not be deemed to have been passed ex parte. In the first place, it is not the presence of any vakil that the Code contemplates but "a pleader duly instructed and able to answer all material questions relating to the suit "or again " a pleader accompanied by some person able to answer all such questions". (See Order 5, Rule 1, (2) Civil Procedure Code). Though the B Diary is silent as to what happened, it is perfectly clear that the vakil that appeared said, that he had no instructions beyond applying for an adjournment. As is clearly pointed out in Arunachalam Goundan v. Katha Goundan (1924) 20 L.W. 795 it is a contradiction in terms to hold that the person who says that he does not appear does in fact appear. The lower Courts order is therefore wrong and must be set aside.

5. There are two courses open to us, either to remand the petition, for the question being tried whether sufficient grounds exist for the setting aside of the ex parte decree or to deal with the question ourselves. It would be a sheer waste of time to adopt the former course. We have ourselves gone through the affidavits and some at least of the petitioners are minors and the only conclusion at which we can arrive is, that the ex parte decree ought to be set aside.

6. In th