( 1 ) THIS revision is against an order dismissing the defendant's application under order 9, Rule 13, Civil P. C. in the trial Court, December 17, 1970, was fixed for evidence of the parties. The plaintiff produced his evidence and closed it. The defendant did not produced any on that date, but sought an adjournment, which was opposed by the plaintiff. It was allowed on the condition that the defendant would pay Rs. 25/- as costs. On February 4, 1971, which was fixed for the defendant's evidence, the plaintiff appeared but the defendant did not appear. His counsel reported no instructions. The trial Court then proceeded under Order 17, rule 3, Civil P. C. , and pronounced the judgment then and there. The claim of the plaintiff was decreed.

( 2 ) THE defendant made an application under Order 9, Rule 13, Civil P. C. , for setting aside the ex parte decree on the ground that owing to the illness of his brother, he became late in starting from his village and missed the train which would have brought him to Jabalpur in time. The application was opposed by the plaintiff.

( 3 ) THE trial Court held that the application under Order 9, Rule 13, Civil P. C. , was not tenable inasmuch as the Court had proceeded under Order 17, Rule 3, when it passed the ex parte decree. It observed that the only remedy was by way of an appeal from the ex parte decree.

( 4 ) AGGRIEVED by the dismissal of his application under Order 9, Rule 13, Civil P. C. , the defendant preferred an appeal under Order 43, Rule 1 of the Code. The appellate Court held that as the suit had been disposed of by the trial Court under order 17, Rule 3, Civil P. C, the application under Order 9, Rule 13 of the Code, did not lie. It is against the appellate order that this revision was filed by the defendant.

( 5 ) SHRI Agnihotri, learned counsel for the petitioner, relies on Madanlal v. Jal narayan, 1971 MPLJ 916 = (AIR 1972 Madh Pra 8) where, on a reference made by a learned single Judge, the Division Bench held as follows :--

"it is Order 17, Rule 2, which applies to every case of non-appearance of the parties on an adjourned hearing, irrespective of whether the hearing had been adjourned at the instance of a party for production of evidence or the like, and even if such default, as is spoken of in Order 17, Rule 3, is coupled with the default of appearance. . . . . Rule 3 of Order 17, applies where a party is present and has committed the default referred to in the rule. This rule does not apply to a case where Rule 2 applies. Rule 3 contemplates the presence of the parties. . . . . Where in spite of nonappearance of a party, the Court proceeds under Rule 3 and even if it expressly men-tions that rule in its order, the aggrieved party is entitled to treat that order as one under Rule 2 and take recourse to the remedy under Order 9. "

That decision applies to the present case on all fours on the question whether the petitioner's application under Order 9, Rule 13, Civil P. C. , was maintainable. In the present case, the defendant did not appear on the date of hearing and his counsel appeared merely to inform the Court that he had no instructions so that the Court would not wait for him; it was not as if the counsel sought an adjournment and then withdrew from the case after it was refused. This being the position, the trial Court must be deemed to have proceeded under Order 17, Rule 2, Civil P. C. Even if it mentioned Order 17, Rule 3, in its order, it must, in the eye of law, be read as one under Order 17, Rule 2. Therefore, following the above division Bench decision, it must be held that the ex parte decree passed by the trial Court was under Order 17, Rule 2, Civil P. C. , and not under Rule 3.

( 6 ) THEREFORE, the petitioner's application under Order 9, Rule 13, Civil P. C. , was competent.

( 7 ) LEARNED counsel for the respondent has relied on an observation in Smt. Sitabai v. Smt. Vidhyawati, 1972 MPLJ 510 = (AIR 1972 Madh Pra 198), in support of his cont