The presence of a defendant does not preclude the court from issuing an ex parte decree; the basis for such a decree is determined by the nature of the order under the Civil Procedure Code.

1. This is a revision under S. 115, Civil Procedure Code on behalf of the plaintiff challenging the order of the Subordinate Judge granting an application for setting aside an ex parte decree passed on the 20th February, 1963. The suit came up for hearing on the 21st December, 1962. On that date a joint application was made for adjournment of the case as there was some talk of compromise. On 20th February, 1963 the plaintiff appeared with his witnesses but as the defendant was not there, it was ordered that the suit should proceed ex parte. Then the evidence on behalf of the plaintiff was taken and the following order was passed : -
"Examined one P. W. Claim prima facie made out. Suit decreed ex parte for ejectment and recovery of Rs. 1110 against the defendant with costs.''
On the same day later on at 11-45 A.M. the counsel for the defendant made an application for an adjournment of the case on the ground that the parties have entered into the agreement and as the defendant was under the impression that the agreement will be given effect to, he could not come prepared with his witnesses. This petition was kept on the record. After this, an application was filed by the defendant on 22-2-63 for setting aside the ex parte decree reiterating the grounds on which he had sought the adjournment in the case on the earlier date. The parties examined witnesses and the court came to the conclusion that the defendant was misled by the proposed compromise talk and had thus sufficient cause not to be ready with witnesses on the date of hearing. The learned Subordinate Judge on the 20th May 1963 allowed the application and set aside the ex parte decree on payment of certain cost.

2. The contention of the petitioners is that the order passed by the trial court on the 20th February 1963 was one under O.17 R.3, Civil Procedure Code and not under O.17 R.2 so as to attract the provision of O.9 R.13, Civil Procedure Code . The remedy of the defendant was to file an appeal. Mainly it is urged that when the defendant was present in court the decree cannot be an ex parte decree at all. There is nothing in O.17 R.2 which says that an ex parte decree cannot be passed when the defendant is physically present. O. 17 R.2 provides as follows : -
"Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit."
The failure to appear does not necessarily mean the physical absence of the defendant. If the defendant asked for an adjournment on the ground that he is not prepared with the witnesses and the adjournment is refused and he did not participate in the proceedings, it cannot be said that he was present and the order necessarily was not one under O.17 R.2. In every case it will depend upon the interpretation of the order passed by the judge on the adjourned date of the hearing as to whether the order is one under O.17 R.3 or one under Or. 17 R. 2, Civil Procedure Code . It cannot be said that in the present case the order which was passed on the 20th February, 1963 was not one under Or. 17 R. 2 but was one under Or. 17 R. 3.

3. The Petitioners have relied upon the case of ' Mst. Gigi Agarwallini v. Baleswar Tewari ' AIR 1961 Assam 99. That case has exhaustively dealt with all the cases on the point. It is laid down in that case that in each case the question will depend upon the interpretation of the decision of the court. If the finding is that the order was one under O.17 R.3 the remedy of the party will be by way of appeal. But if the order is interpreted to be one under O.17 R.2, the remedy of the petitioner is to make an application for setting aside the ex parte decree. At