An application to set aside an ex parte decree is maintainable under Order 9 Rule 13, Civil P. C., even if the court was wrong in law in passing the decree ex parte.

( 1 ) THIS is an appeal against an order refusing to set aside an ex parte decree.

( 2 ) THE appellant was the defendant in a suit for recovery of money. The 28th April 1949 was fixed for final hearing of the salt. On 26th April 1949, an application was made for fixation of another date. This application was put up on the date already fixed. On the date fixed, that is, on 28th April 1949, the Court rejected the application and proceeded to decide the suit ex parte. The appellant then made an application for setting aside the ex parte decree. In that application he had stated that he had gone to Calcutta on 16th April 1949 and had sent a telegram and a letter from there on 23rd April 1949 for the postponement of the case, that he had to start from calcutta on an urgent call and started on 24th April 1949, that he got down at Allahabad remaining here for two days, that he reached Aligarh on 27th April 1949 in the evening and that he was too weak and exhausted to approach his lawyer and so he was absent on the date fixed, that is, on 28th April 1949.

( 3 ) THE lower Court disbelieved the allegations made in the affidavit and rejected the application on two grounds, first, that since 28th April 1949 was an adjourned date and his counsel was present on that date, though for the purpose of moving an application for adjournment only, it will be deemed that the appellant was present on the date of the hearing and so the order passed by the Court must be deemed to have been parsed on merits and secondly, that there were no merits in the application.

( 4 ) IT appears that the suit was filed on 3rd June 1947. On 10th October 1947, issues were framed and 5th December 1947 was fixed for final hearing. There was an application for transfer and the hearing of the case was stayed. When the transfer application was rejected, the hearing of the case was resumed and 20. 1. 1949 was fixed for final hearing. On that date the case could not be heard because of the Court being busy in other cases and the case was fixed for final bearing on 22nd February 1949. On that date also the Court could not take up the case and fixed 28th April 1949 for final hearing.

( 5 ) AS already stated, on 26th April 1949, an application had been made for fixation of another date. The application was taken up on 28th April 1949 and counsel for the appellant appeared in court in support of it. The application was rejected. One of the learned counsel, Shri Bhajan Lal, appearing for the appellant stated that he had no instructions in the suit, while another counsel, shri Govind Prasad, stated that he had instructions to press the application for adjournment and no more. Counsel for the plaintiff urged that the case be decided on merits. The Court observed : "i have carefully perused Order 17, Rules 2 and 3 Civil P. C. , and having regard to the same and the interest of justice I think that the case may not be heared and decided on merits. The contesting defendants being absent, the case shall be heard ex parte against them. " the case was ultimately decided ex parte and not on merits against the defendants. The judgment of the Court below expressly stated that the case was being decided ex parte against the defendants.

( 6 ) IT has been urged before us that the case must be deemed to have been decided on merits under order 17 Rule 2. Order 17, Rules 1 to 3 are as follows "1. (1) Court may grant time and adjourn hearing. The Court may, if sufficient cause is shown, at any stage of the suit grunt time to the parties or to any of them and may from time to time adjourn the hearing of the suit. * * * * * 2. Procedure if parties fail to appear on day fixed. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed be dispose of the suit in one of the modes directed in that behalf by Order IX or mate such other order as it thinks fit. HIGH COURT AMENDMENTS. Allahabad.--Add to Rule 2:--"where the e