The main legal point established in the judgment is that the Civil Procedure Code does not permit parties or their lawyers to engage in tactics that could manipulate the proceedings or lead to the hearing of a suit being considered ex parte.

9, Rule 7 has no application. The defendant comes up in revision.

1. It has been pointed out by the respondent that the final decree in the suit was passed on 29th November 1926, before this petition was filed in this Court, and it is contended that therefore it is not open to the petitioner to have the matter raised by way of revision since he can raise it by way of appeal against the final decree. It is not, however, an invariable rule of this Court that it will not interfere in revision when a party has another remedy open to him although certainly in such cases it would require very strong grounds to induce the Court to interfere. My attention has not been directed to any case in which this Court has interfered in revision to set aside an interlocutory order or finding in a suit on a petition presented after the final disposal of that suit by the lower Court. The petitioner obviously has his ordinary remedy by way of appeal. This is not a case in which the order under revision is an order absolutely without jurisdiction as was the case in Manickam Pillai v. M. Bathummal A. I. R. 1925 Mad. 209 relied on by the petitioner. I have, however, heard the case on the merits in order to see whether there are any very strong grounds for interfering at this stage, or for supposing that the matter cannot be adequately dealt with on appeal. It appears to me that it by no means follows as a matter of course that a reversal now of the Subordinate Judges order will entail the cancellation of the decree now passed. A reversal of that order would, at the most, lay down that the Court was mistaken in holding that it had no jurisdiction to entertain the petition and set aside its finding; but there is nothing in that which would ipso facto involve a cancellation of the decree.

2. It is not, however, necessary to consider this point further as I am of opinion that the Subordinate Judge is right in his view that the petition was not ex parte when the evidence on the findings was taken and the findings delivered. It is not necessary of course that a party should be formally placed ex parte before he becomes ex parte and if the Subordinate Judge was under that impression that is an erroneous one. A party is ex parte or not according as he had not or had appeared within the meaning of that term as used in Order 9.

3. It is argued for the petitioner that when his vakil, in answer to the Courts direction to open his case for the defence, stated that he had no instructions to do so, the defendants appearance, which had lasted up to that point of time in the case, ceased and that, therefore, for the rest of the hearing, it was a case of non-appearance by the defendant. The logical result of such a contention would be that the moment a party or his vakil sees that the evidence or order or judgment in the case is going or likely to go against him the vakil can say that he has no instructions and compel the Courts order to become an ex parte one, and thus either gain time to reconstruct his position or to have whatever order is passed subsequently revised by the Court or at least have a chance of its being revised by the Court or by the High Court. I should be very reluctant to interpret the relevant provisions of the Civil Procedure Code in such a way as to give scope for this sort of reprehensible tactics and thus take the conduct of the case virtually out of the hands of the Court and put it at the mercy of the vakils or parties. I do not think the Code contemplates any such proceeding.

4. The rule which is called in aid is Order 17, Rule 2 which relates back to Order 9 and the rule under Order 9 which applies is Rule 7 which relates back to Rule 6. Rule 6 says that where the defendant does not appear "when the suit is called on for hearing"then certain results follow. The reasonable interpretations of that phrase seem only two: first, (when an appearance under Order 9 is in question) that the rule is limited to the first day of hearing so as to dist