G. C. MATHUR, J. :- The following question has been referred to this Full Bench for opinion :-

"Whether a decision recorded specifically under O. 17, R. 3 of the Code of Civil Procedure would exclude relief under the provisions contained in Order 9 of the Civil P. C. irrespective of the question whether, in recording its decision under R. 3, the Court acted rightly or wrongly?" The question arises in the following circumstances: A suit was filed by the respondent against the appellant for rendition of accounts and recovery of commission. May 6, 1965, was an adjourned data of hearing. On this date, the defendant was absent and the Court recorded an order in the order sheet (English note) to the following effect :-

"This is an adjourned date of hearing because the defendant had been allowed adjournment on the previous date, viz., 14-4-1965. The defendant to-day has failed to appear and, in my view, this suit should be heard under R. 3 of O. 17, Civil P. C. I accordingly proceed to hear the suit under O. 17, R. 3. Civil P. C."

Thereafter the plaintiff's witnesses were examined and the next day was fixed for judgment. On May 7. 1965, the Court delivered its judgment, decreeing the suit on merits. On May 20, 1965, the appellant (defendant) filed an application, praying for an order setting aside the decree, treating the decree as an ex parte decree. This application was rejected on May 21, 1965, by the following order :-

"For the reasons given in the English Note dated 6-5-1965, the suit was decided under O. 17, R. 3, Civil P. C. and, therefore, this application (under provisions not noted) for setting aside the decree is not maintainable and is hereby rejected." Against this order, the appellant (defendant) filed an appeal before this Court. Before the Bench hearing the appeal, the defendant-appellant contended that the decree must be taken to be an ex parte decree passed under O. 9, R. 6 read with O. 17, R. 2 and, therefore, the application to set aside the decree was maintainable under O. 9, R. 13. The respondent urged that, since the Court below acted under O. 17, R. 3, the only remedy of the appellant was by way of an appeal against the decree. A question arose before the Bench whether it was open to it to go into the question whether O. 17, R. 3 applied to the case or O. 17, R. 2 read with O. 9, R. 6 applied. The Bench found that there was a conflict of opinion on this question between the decisions of Division Benches of this Court and it, accordingly, referred the question set out above for opinion to a Full Bench.

2. Before examining the previous decisions of this Court on this point, it will be convenient to refer to the relevant provisions of law. Order 9 of the Code of Civil Procedure deals with the appearance of parties and consequence of non-appearance on the first date fixed for the hearing of a suit. Rule 6, inter alia, provides that, if, on this date, the plaintiff appears and the defendant does not appear, the Court may proceed ex parte if it is proved that the summons was duly served. Rule 13 confers a right on the defendant to make an application for setting aside the ex parte decree. Rule 8 provides that, if, on this date, the defendant appears and the plaintiff does not appear, the Court shall dismiss the suit unless the defendant admits the claim or a part of the claim. Rule 9 confers a right on the plaintiff to apply for an order to set aside the dismissal. Order 17 deals with adjournments and the procedure at the adjourned date of hearing. Rules 2 and 3 of this Order, with which we are concerned, have been amended by this Court and, as amended, stand thus :-

"Rule 2- 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 to dispose of the suit in one of the modes directed in that behalf by O. 9 or make such other order as it thinks fit.

Where the evidence, or a substantial portion of the evidence, of any party has already been r