MOOTHAM, J. :- This is a defendants appeal from an order of the Civil Judge, Agra.

2. The 29th February 1952, was fixed by the Civil Judge for the hearing of a suit in which the present respondent was the plaintiff and the present appellant the defendant. On that date counsel for the defendant applied for an adjournment as the defendant was not present and the hearing was adjourned to the 14th March. On the adjourned date the defendant was absent and his counsel stated that he bad no instructions, whereupon counsel for the plaintiff asked the court to proceed to decide the, suit under O. 17 Rule 3. The court purported to do so; it recorded the evidence of the plaintiff and two witnesses, delivered judgment in favour of the plaintiff and a decree was subsequently drawn up in accordance with the terms of the judgment.

3. One month later, on the 14 April, the defendant applied to the court for the decree to be set aside under O. 9 R 13. This application was dismissed by the learned Civil Judge in a brief order in which he said -

"The application does not lie as the decision was on merits under O. 17 R. 3 Civil P.C. Order. Rejected.

It is from this order that the present appeal has been filed.

4. Sri Hari Sarup for the appellant has argued that as the circumstances of this case were not Such as to make applicable the provisions of R. 3 of O. 17 the learned Civil Judges order must be deemed to have been made under O. 17 R. 2, and that in consequence an application made under Order 9 R. 13 to set aside that order would lie. Sri B.L. Chaturvedi for the respondent contends that whether the order of the Judge was right or wrong, it was undeniably made under O. 17 R. 3 and that the proper remedy was by way of appeal or review.

In support of his argument counsel for the appellant relied on - Raja Singh v. Manna Singh, AIR 1940 All 217 (A), and - Rafiq Ahmad v. Mohammad Shafi, AIR 1949 All 423 (B), both bench decisions of this Court. In each of these cases the lower court gave the plaintiff a decree under Order 17 R. 3. Applications were then made by the defendants for the decrees to be set aside under Order 9. In - Raja Singhs case (A) the application was allowed and the plaintiff came in revision to this Court. In - Rafiq Ahmads case (B) the application was dismissed and against that order the defendant filed an appeal. In both cases this Court examined the circumstances in which the decrees were passed by the lower courts, and being of opinion that those circumstances were not such as would entitle them to act under Order 17 R. 3 it held that the decrees must be deemed to have been made under R. 2 of that Order and that consequently an application under O. 9 R. 9 or O. 9 R. 13 would lie.

5. A different view has however been taken in other cases to which counsel for the respondent drew our attention. In - Nasir Khan v. Itwari, AIR 1924 All 144 (C) this Court declined in similar circumstances to consider whether the lower court which had made a decree in favour of the plaintiff purporting to act under O. 17 R. 3 was justified in doing so. The Court said -

"The right of appeal does not depend on what the court ought to have done but on what it actually did. What it actually did was to pass a decree on the merits. Against such a decree the law allows an appeal. When the appeal comes up for decision, the appellate court has then to decide whether the order passed was a proper order and one which the court below had jurisdiction to pass. If it decides this question in the negative it will set the order aside."

In - Udai Ram Gopi Ram v. Raghuraj Singh Khub Chand, AIR 1944 All 211 (D) another bench of true Court was of opinion that a Judge who had passed a decree under O. 17 R. 3 had no jurisdiction to set it aside, and in a recent case, - Sri Krishen v. Radha Krishen, AIR 1952 All 652 (E) the Court, in a judgment delivered by Agarwala, J., laid it down that

"The question whether an application for restoration is maintainable must be decided u