JUDGMENT

Dalal, J. - We shall consider in this judgment the facts of Suit No. 83 of 1920. There is a connected revision relating to a decree passed in Suit No. 124 of 1920. To avoid confusion, we shall deal with the decree in the former suit as from the point of view of the respondents to this application, the decree in Suit No. 86 of 1920 is more in their favour.

2. This Suit No. 86 of 1920 after various postponements was adjourned on the 23rd June, 1921, on the application of the defendant Ramadhin for the production of defence evidence. 3rd August, 1921, was the date fixed for hearing and on that date the defendant did not appear in person, nor did any pleader of his appear. He did not put forward any evidence for the defence. The Court thereupon wrote a judgment decreeing the plaintiff's suit for redemption.

3. It is argued here on behalf of the respondents that the decree purports to be one passed under Order 17, Rule 3. No order or rule is mentioned in the judgment, but in the order sheet it is mentioned that the decree is passed under Order 17, Rule 3. Subsequently, the defendant, treating this decree as one passed ex-parte under Order 17, Rule 2 applied for re-hearing under Order 9, Rule 13. The Trial Court of the Subordinate Judge decided that the application did not lie and that the defendant ought really to appeal from the decree passed on the merits under Order 17, Rule 3. On appeal to the District Judge, that Court came to the same conclusion and dismissed the appeal. This is a revision from the order of the District Judge.

4. It was first argued by the respondents' learned Counsel that no application in revision lay, because the lower Appellate Court had decided rightly or wrongly that the original decree was passed under Order 17, Rule 3 and that therefore no application for re-hearing lay to the Trial Court. In our opinion the provisions of Section 115 will apply if we hold that the application was one for re hearing and the District Judge refused to exercise the jurisdiction vestee in him of hearing an appeal from the refusal of the Trial Court to grant ad application for re-hearing. It will depend upon our subsequent decision whether the lower Appellate Court has exercised its jurisdiction or failed to do so.

5. Coming to the question whether the decree ought to have been passed in the redemption suit under Rule 2 or Rule 3 of Order 17, our opinion is that the decree in such a case should be passed under Rule 2 even where a party has taken time to produce evidence and on the date fixed for hearing of that evidence he is absent. Rule 2 comes first in the order of precedence. It lays down that "where on any day to which the hearing of the suit is adjourned the parties or any of them failed to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit." When the party is not present the Court is bound to proceed under this rule and cannot proceed under the later rule, Rule 3.

6. The next question is whether the words "make such other order as it thinks fit" include an order under Rule 3. It has been held by a Bench of this Court in Ram Charan Lal Vs. Raghubir Singh and Others, AIR 1923 All 551 that on the proper interpretation of Order 17, Rule 2 a Court cannot pass a judgment on the merits under cover of the words "make such other order as it thinks fit." The other order referred to could only mean an order for further adjournment. Mr. Justice Lindsay who delivered the judgment of the Court relied on the Bench ruling of Phul Kuar v. Hashmatullah (1915) 37 All. 460. There has been a certain amount of conflict of authority on this point. In Gaura Bibi v. Ghesitiya (1911) 34 All. 123 where a suit was dismissed on an adjourned date of hearing on the ground that the claim was not proved, the Court held that an application for restoration did not lie under Order 9, Rule 4, the plaintiff's remedy being by way of appeal against the Co