Cornish, J.

1. The appeal is by the first defendant against the order of the Subordinate Judge dismissing his application under Order 9, Rule 13, to set aside a decree. The application was made on the ground that the first defendants illness was a sufficient cause for his not being present when the case was called on for hearing. The Subordinate Judge was not satisfied with the bona fides of this excuse or with the medical certificate with which it was supported, and dismissed the application. We are not now concerned with the merits of the first defendants application, because we think that the objection raised by the respondents learned Advocate that no petition lay under Order 9, Rule 13 is a good one. Order 9, Rule 13, has reference to decrees made ex parte, and it has to be seen whether the first defendant was, when the decree was made against him, ex parte. In our opinion he was not. The suit had been posted to 3rd February, 1931, for trial. We are told that issues had been framed some months earlier, and it appears from the judgment that one of the issues had been determined on the 16th January. The first hearing stage therefore was past on the 3rd February. On that d