The provisions of Order 9 Rule 13 of the Code of Civil Procedure are applicable even when a judgment is pronounced in accordance with Order 8 Rule 5 or Rule 10 due to non-filing of written statement.

P. K. MISRA,J.

( 1 ) THE defendant has filed this application challenging the order of the appellate Court refusing to set aside the ex parte order passed by the Civil Judge (Senior Division) Angul. The opposite parties had filed the suit for eviction. Even though the defend ant had entered appearance, written statement, was not filed and the suit was decreed in accordance with Order 8, sub-rule (2) of Rule 5 read with Order 8, Rule 10, Code of Civil Procedure (in short, the "c. P. C. " ). The present petitioner had filed an application to recall the said order. However, the trial court having rejected such petition, Misc. Appeal was filed before the learned Additional District Judge, Angul, who confirmed the order of the trial court. Hence, the present Civil Revision.

( 2 ) THE appellate Court has observed that since the disposal of the application was in accordance with Order 8, Rule 5 (2) and Order 8, Rule 10, C. P. C. , the petition under Order 9, Rule 13, C. P. C. was not maintainable. The provisions contained in Order 8, Rules 5 and 10 and order 9, Rule 13 of C. P. C. are extracted hereunder: order 8 Rules 5 and 10 : " 5. Special denial- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: provided that the Court may in its discretion, require any fact so admitted to be proved otherwise than by such admission, (2) Where the defendant has not filed a pleading it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability , but the Court may, in its discretion, require any such facts to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced, " "10. Procedure when party fails to present written statement called for by Court.-where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up. Order 9. Rule 13 -. "13. Setting aside decree ex parte against defendant.-in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any, sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order, setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint, a, day for proceeding with the suit. Provided that where the; decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient, time to appear and answer the plaintiff's claim. Explanation-I.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex part