1. This is a revn. petn. against an order passed by the Subordinate J. Tumkur, confirming that of the Munsiff of Tiptur who held that an appln. filed by the petnr, under Order 9, Rule 9, C. P. C., to set aside the ex parte decree partly dismissing his suit O. S. No. 317 of 46-47 on account of his absence, was not maintainable.
2. The suit filed by the petnr. was for the recovery of money & at an adjourned date of hearing, he was absent. In view of the fact that the deft, bad admitted a portion of the suit claim, a decree was passed for the admitted amount & the rest of the suit must be deemed to have been dismissed as a decree was not passed for the entire amount claimed in the plaint. It is clear the decision dismissing the suit in respect of the part of the suit claim was ex parte as the pltf. was absent. It is unnecessary to refer to the question as to whether Rule 2 or Rule 3 of Order 17 applies to cases of that kind as that matter has been considered in the F. B. decisions reported in 23 Mys. C. C. R. 1 and 25 Mys. C. C. R. 116, in which it hag been held that in cases of this kind the disposal is one under Order 17, Rule 2, C. P. C.
3. The point pressed, however, before us is that it has been held in 24 Mys. C. C. R. 66, that an appeal would lie against the decree under which a suit is partly decreed & the rest of the suit claim is dismissed. It is to be pointed out that it is not stated in that case that no other remedy lies. Order 9, Rule 9 makes it clear that where a suit is wholly or partly dismissed under Rule 8, the pltf. shall be precluded from bringing a fresh suit in respect of the same cause of action bat he may apply for an order to set the dismissal aside. It is not clear why in this case in which the suit must be deemed to have seen partly dismissed, there being only a decree for a portion of the suit claim, the pltf. petnr. cannot file an appln. under Order 9, Rule 9, C. P. C. The lower Cts, were wrong in holding that the petn. of the pltf. under Order 9, Rule 9 is not maintainable. The mere fact, that an appeal lies against a decree does not necessarily mean that the party aggrieved has no other remedy.
4. The revn. petn. is allowed, the orders of the lower Cts. are set aside & the learned Munsiff is directed to take the case on his file & dispose of it on merits. The petnr. will get his costs throughout (Advocate's fee Rs. 10 in this Ct).