- (1.) This first appeal from order is directed against order dated 10th April 1987 rejecting the application of defendant-appellant filed under Order 9 rule 13 C.P.C. as not maintainable. Since the order appears to be illegal we consider it expedient to dispose of the same at admission stage after hearing learned counsel for State Bank of India. Therefore, we sent for him and explained that in case we admit the appeal and grant stay order the appeal may not be decided for some time. And that may not be in the interest of Bank. The learned counsel then argued. Consequently the appeal is being disposed of after hearing learned counsel for both the parties.
(2.) From certified copy of order sheet dated 26th August, 1986 it is clear that the case was adjourned and fixed for hearing on 18th September, 1986. It was not a date at instance of appellant. Rather the case was adjourned because respondent wanted another date for producing evidence. In M.S. Khalsa v. Chiranji Lal (A.I.R. 1976 Alld 290 F.B.) it was held that Order 17 rule 3 applied in these limited cases where a party is present or deemed to be present and has defaulted in doing what is provided in rule 3. Since the date of 18th September was not fixed at the instance of defendant-appellant nor he was required to do anything, the Civil Judge could not proceed under Or. 17 rule 3 C.P.C. The only reason for invoking this provision by Civil Judge was that he was informed by clerk of the counsel that appellant was sitting at the seat of the counsel. Although this was denied later on. Clerk explained that he did not recognise him. But the court did not accept the same. But that certainly could not empower him to proceed under order 17 rule 3 C. P. C. If he passed an order then the application under order 9 rule 13 was maintainable.
(3.) Learned counsel for State Bank of India urged that matter may be sent back to Civil Judge for deciding application under Order 9 Rule 13. Normally this is the proper course. But sending case again for deciding application Under Order 9 rule 13 will be delaying the matter. Since order dated 18th September, 1986 is on record and order-sheet has already been discussed by us. Application for adjournment has also been produced. From all this we are satisfied that it was a fit case in which Civil Judge should have exercised his discretion in favour of appellant.;