NARBADA PRASAD Vs. AWADESH NARAIN

JUDGEMENT

(1.) THIS revision is against an order dismissing the defendant's application under order 9, Rule 13, Civil P. C. in the trial Court, December 17, 1970, was fixed for evidence of the parties. The plaintiff produced his evidence and closed it. The defendant did not produced any on that date, but sought an adjournment, which was opposed by the plaintiff. It was allowed on the condition that the defendant would pay Rs. 25/- as costs. On February 4, 1971, which was fixed for the defendant's evidence, the plaintiff appeared but the defendant did not appear. His counsel reported no instructions. The trial Court then proceeded under Order 17, rule 3, Civil P. C. , and pronounced the judgment then and there. The claim of the plaintiff was decreed.

(2.) THE defendant made an application under Order 9, Rule 13, Civil P. C. , for setting aside the ex parte decree on the ground that owing to the illness of his brother, he became late in starting from his village and missed the train which would have brought him to Jabalpur in time. The application was opposed by the plaintiff.

(3.) THE trial Court held that the application under Order 9, Rule 13, Civil P. C. , was not tenable inasmuch as the Court had proceeded under Order 17, Rule 3, when it passed the ex parte decree. It observed that the only remedy was by way of an appeal from the ex parte decree.