( 1. ) BEING aggrieved by the judgment and decree dated 17-2-99 passed by I adj, Ratlam in M. A. No. 51/97 whereby the order dated 28-4-91 passed by Civil judge Class I, Ratlam in MJC No. 4/95 was confirmed and application filed by the petitioners under Order IX Rule 13, CPC was dismissed, the present petition has been filed.

( 2. ) SHORT facts of the case are that respondent filed a suit against the petitioners for realization of a sum of Rs. 14,466. 98 paisa on 24-7-84. This suit was registered as Civil Suit No. 18-B/84 and was decreed in ex parte on 17-2-86. Against the ex parte decree, an application was filed by the petitioners under order IX Rule 13, CPC. Ultimately the application was allowed and ex parte decree dated 17-2-86 was set aside. After setting aside the ex parte decree, the case was fixed for appearance of the parties on 28-11-94. On this date, after appearance of the parties, the case was adjourned for filing the written statement on 5-12-94. On this date, respondents prayed time to file the document. Ultimately documents were supplied on 17-1-95 and the case was adjourned for filing of written statement on 23-1-95. On this date, an application was filed on behalf of the petitioners praying for adjournment for a week to file the written statement. This application was disposed of by giving one day time instead of seven days to file the written statement and the case was listed of seven days to file the written statement and the case was listed on 24-1-95. On this date, the written statement was not filed, hence the Court proceeded under Order viii Rule 10, CPC and passed the decree against the petitioners for a sum of rs. 14,466. 98 paisa along with interest. Being aggrieved by the judgment and decree passed by the learned Trial Court, an application was filed by the petitioner under Order IX Rule 13, CPC for setting aside the ex parte decree. This application was registered as MJC No. 4/95 and was contested by the respondent. After holding the summary enquiry, learned Trial Court dismissed the application against which M. A. was filed, which was also dismissed, hence the revision petition.

( 3. ) LEARNED Counsel for petitioners submits that decree passed under order VIII Rule 10, CPC amounts to ex parte decree and application filed under order IX Rule 13, CPC is maintainable. It is submitted that learned Court below committed material irregularity in rejecting the application.

Reliance was placed on a decision of Madras High Court in the matter of N. Jayaraman Vs. Glaxo Laboratories India Ltd. , AIR 1981 Madras 258, wherein it was held that-

"order 9 Rule 13 is not confined to case where an ex parte decree is passed after observing the procedure under Order 9 Rule 6. A decree passed under Order 8 Rule 10 for defendants default in filing the written statement without any written judgment on merits is an ex parte decree covered by Order 9 Rule 13 and an application to set it aside under Order 9 Rule 13 is maintainable. "

( 4. ) FURTHER reliance was placed on a decision of Orissa High Court in the matter of Narendra Patra Vs. Shiba Narayan Taldi and another, AIR 1995 orissa 45, wherein it was held that-

"sub-rule (2) of Rule 5 of Order 8, CPC does not contemplate decreeing of a suit, but it contemplates pronouncement of judgment on the basis of facts contained in the plaint. A decree is drawn up in such a case after pronouncement of judgment, under rule 10 of Order 8. A decree passed under the Rule for defendants default in filing a written statement is nonetheless an exparte decree coming within the purview of Order 9 Rule 13 and thereafter an application to set aside such a decree under Rule 13 of Order 9 is maintainable. "

( 5. ) IN the matter of Gujrat Co-operative Oil Seeds Growers Federation, air 1994 Delhi 367, it was held that- "it is not necessary for the appellant to file an appeal against the decree. Once the application under Order 9 Rule 13 is maintainable, it is upto the appellant to apply for s