An application under Order 9 Rule 13 Civil Procedure Code is not maintainable to set aside a decree passed under Order 17 Rule 3 Civil Procedure Code, on merits. The remedy in such cases is to file an appeal against the decree.

J.V.Gupta, J.

1. This petition is directed against the order of the Additional District Judge, Gurgaon dated 12th January, 1979, whereby order of the trial Court dismissing the application under Order 9 Rule 13 as not maintainable was affirmed. The relevant facts which are not in dispute are as under.

2. The plaintiff Khem Chand filed a suit for possession on 16th October, 1971. After the plaintiff closed his evidence on 3rd September, 1975, the case was fixed for defendants evidence for 17th October, 1975. On that date, the witnesses of the defendant were not present and the case was adjourned to 4th December, 1975, subject to payment of costs of Rs. 15. On 4th December, 1975, the following order was passed by the Court :-

"Present : Shri Gobind Lal, Advocate for the plaintiff. Counsel for the defendant is present. No. D.W. present. It has been stated by the counsel for the defendant that the D.W.s have not been produced today because the plaintiff had told him that he will be out of station today. Under these circumstances, I grant one more, but last, opportunity as already directed on the last date of hearing. For evidence of the defendants to come up on 16th December, 1975. It is made clear to the defendant that his case shall be deemed closed on the next date after recording the evidence present on that day."

On 16th December, 1975, the case was called at 10.50 A.M. when counsel for the plaintiff was present but the counsel for the defendant and the defendant were not present. It was ordered that the case be called again at 11.00 A.M. Again the position was the same at 11.00 A.M. and it was ordered that the case be again called at 12 noon. At that time, the counsel for both the parties were present and the following order was passed :-

"Counsel for the defendant has stated that no D.W. is present today nor was any D.W. summoned for today. He has pressed for another adjournment, which is opposed by the opposite party. The defendant does not deserve any more opportunity for adducing his evidence. The records of the file reveal that on 3.9.75 the case was adjourned for defendants evidence for 17.10.1975. On 17.10.1975, at the request of defendant, another opportunity was granted and there was a clear direction that on the next date of hearing the case of the defendant shall be deemed closed after recording the evidence present on that date. The case from 17.10.1975 was adjourned to 4.12.1975 on payment of conditional cost of Rs. 15. On 4.12.1875, no D.W. was present. The defendant sought another opportunity and the case was adjourned to 16.12.75. It was again made clear to the defendant that his case shall be deemed closed on the next date. Today, again the "defendant has not brought any witness nor was any witness summoned by the defendant for today. Even the defendant has not appeared to make a statement in support of his own case. The defendant, it appears, is interested in prolonging the case. Under these circumstances, the defendant cannot be allowed any more opportunity. Conditional cost of Rs. 15 has also not been paid. The evidence of the defendant was closed under Order 17 Rule 3 Civil Procedure Code. Counsel for the defendant stated that he will be prepared to argue the case after lunch. Accordingly, to come up at 2.30 p.m. for argument."

The case was again called at 2.30 p.m. and the following order was passed :-

"It is 2.30 p.m. Now case has again been called up. Present counsel for the plaintiff. Counsel for the defendant Sh. Mohan Lal Gupta, at this stage has made a statement duly signed by him to the effect that he cannot argue on merits of this case as he has no instructions to prosecute the suit further. Arguments of learned counsel for the plaintiff heard. Record gone through. Judgment announced. Vide judgment even dates, suit decreed with costs. Decree be drawn and the file be consigned to the record room."

The defendant filed an application under Order 9 Rule 13 Civil Procedure Code dated 24th Dec