JUDGMENT

Harrison, J. - The plaintiff in this case brought a suit for possession of certain land and was given a decree ex parte on 30th November 1920. On the following day, the 1st December 1920, the defendant applied to have the ex parte decree set aside. The 17th of December was fixed for the hearing of this application and an adjournment was given to the 5bh of January, as notice had not been served for the 17th December. The applicant failed to pay the process-fee and consequently on the 5th of January the application was consigned to the record room. This I tak6 to be tantamount to an order dismissing the application. An appeal was presented to the District Judge, who has held that it does not lie, inasmuch as the order must be treated as being tinder Order 9, Rule 2 and not Order 9, Rule 13 and that, therefore, the proper remedy for the appellant was an application under Order 9, Rule 4 and not an appeal. From this order this revision has been presented and the first question to be decided is whether the appeal did or did not lie to the District Judge. Counsel for the petitioner relies on three rulings: Kumud Kumar Bose v. Hari Mohan Samadar (1916) 21 Cri.L.J. 628, Sacheeni v. Kanta Hazi (1916) 36 I.C. 798 and Pakari Pramanik v. Sarat Sundari Debya (1917) 37 I.C. 835. In all these the application for setting aside the ex parte decree was dismissed in default and in all it was held that this order of dismissal in default was an order under Order 9, Rule 13, and, therefore, an appeal lay. In both Kumud Kumar Bose v. Hari Mohan Samadar (1916) 21 Cri.L.J. 628 and Sacheeni v. Kanta Hazi (1916) 36 I.C. 798, Counsel for the petitioner applied for an adjournment, and, on this being refused, withdrew. In Pakari Pramanik v. Sarat Sundari Debya (1917) 37 I.C. 835 there was no sort of appearance at all. On the reasoning adopted by the learned District Judge the orders should have been treated as being under Order 9, Rule 3 from which there is no appeal and against which the aggrieved party must seek his remedy by an application under Order 9, Rule 4. This view, however, was not taken, and the result rather than the intermediate stage being looked to, the final order was treated on all three occasions, in spite of having been passed in default and not on the merits, as being an order under Order 9, Rule 13. Both views of the nature of the order are possible and I follow that taken three times by the learned Judges of the J Calcutta High Court and hold that the I result of the order being a dismissal of the 1 application to set aside the ex parte decree, 1 an appeal lay. I, therefore, accept the application for revision and direct that the appeal be decided on its merits. Under the circumstances of the case and as it is clear that the successful petitioner did not state his case fully or rather the law on the subject before the District Judge, I think the correct order is that the parties should pay their own costs in this application for revision.