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 h