Pandey, J.-

1. This is a defendants appeal against a decree for Rs. 52,535- with proportionate costs and future interest which was passed against them on account of price of 3307 tons of coal supplied to them at Rs. 14/9 per ton and other incidental charges.

2. The plaintiff, Rewa Coalfields Ltd., has coal mines at Burha and Sahdol. The defendants, who are partners of a registered firm, Chaurasia Limestone Company, Satna, manufacture lime and require coal for use in their kilns at Satna. The plaintiff alleged that, between January 1952 and March 1053, it supplied to the defendants 3307 tons of coal at the rate of Rs. 14/9 per ton. Since the defendants did not pay the price, the plaintiff laid this suit claiming Rs, 52,537/14, including Rs. 1,505 on account of sales tax and Rs. 2,872/3 on account of interest. The defendants resisted the claim inter alia on the ground that, for the supplies made between June 1951 and March 1953, they paid the entire price except Rs. 7,496/11 and that the supplies prior, to June 1951 were made by Messrs Sood Brothers. Calcutta to whom payments for those supplies had been duly made. After issues were framed, the case came up for trial on 27 August 1954 and subsequent dates. On 12 October 1954, the defendants applied for, and obtained, an adjournment to produce additional evidence on condition that they should pay to the plaintiff Rs. 200 as costs. On the adjourned date, 8 November 1954, the defendants neither appeared nor paid the costs. The Judge then proceeded ex parte against them and passed on the following day an ex parte decree. Against that decree, the defendants preferred this appeal on 17 February 1955 when the prescribed period of limitation had already expired on the previous day. On 19 February 1955, they filed an application under section 5 of the Limitation Act for condonation of that one day's delay in filing the appeal on the ground that, on 16 February 1955, Ramlal, one of the defendants who was in charge of the limitation, suddenly fell ill. The learned Judicial Commissioner of Vindhya Pradesh declined to condone the delay and dismissed the appeal on 6 August 1955. Being aggrieved, the defendants applied for, and obtained, a certificate of fitness under Article 133 of the Constitution and preferred a further appeal to the Supreme Court, which sent back the case for disposition merits after condoning the delay in filing the first appeal. The authorised report of the judgment of the Supreme Court is Ramlal, Motilal and Chhotelal Vs. Rewa Coal-field; Ltd. (1962) 2 SCR 762. This is how the appeal is now before us.

3. The only point urged in support of this appeal is that the Additional District Judge was not justified in refusing to adjourn the case and passing an ex parte decree. The Learned counsel for the plaintiff has, however, argued that, since the defendants had made an application for setting aside the ex parte decree, it is no longer open to them to challenge the ex parte decree. In our opinion, this argument proceeds on a misconception of the true position. Section 96 (2) of the Code of Civil Procedure expressly provides for an appeal from a decree which is passed ex parte. Similarly, the aggrieved defendant is entitled to make an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree. The Code has given these two remedies and neither should be regarded as operating in derogation of the other. So, the Privy Council held in Radha Raman Shaha Vs. Pran Nath Roy, ILR 28 Cal 475 PC, and Khagendra Nath Mehata Vs. Pran Nath Roy, ILR 29 Cal 395 PC that the rejection of an application for setting aside an ex parte decree and the fact that the defendant had not appealed from the order rejecting it did not bar a challenge to the decree on another ground, namely, fraud. As pointed out by the Privy Council, a provision like Order 9, Rule 13 limits the attention of the Court to specific, matters. The correct position, we think, is that the appeal against