1. This is a defendant's appeal arising out of a suit filed by the plaintiffs for which 2nd May 1934 had been fixed for the framing of issues. After the framing of issues, the Court fixed 24th September 1934 which was later changed to 5th September 1934 for hearing, That was not an adjourned hearing but the first date fixed for the final hearing of the case. On that date the defendant applied through a lawyer for an adjournment on the ground that he was not well, but did not send any medical certificate. The Court dismissed the application upon which the defendant's lawyer withdrew from the case on the ground that he had no further instructions to proceed. The Court heard the case in the absence of the defendant and decided it and expressly stated that the decree was passed ex parte against the defendant. Later the defendant applied for setting aside the ex parte decree and for the restoration of the case.
2. The lower Court has not considered the application on its merits and has not gone into the question whether the defendant was prevented by any sufficient cause from not appearing on that date. It has dismissed the application merely on the ground that the case falls under Expl. 2 to Order 17, Rule 2, and that inasmuch as the defendant's lawyer had appeared, though for purposes of applying for adjournment only, there was an appearance on behalf of the defendant and the decree cannot be treated as an ex parte decree. It seems to us that the view taken by the Court below on this point is erroneous. Order 17, Rule 2 applies to a case where the date on which the decree is passed is one to which the hearing of the suit bad been adjourned; and a party fails to appear. It does not apply to a case where the suit comes up for disposal on the date which is the date for the first hearing. That there is a distinction between the first hearing and an adjourned hearing is clear from the provisions of Order 15 and Order 17 respectively. We therefore think that Order 17, Rule 2 was not applicable to this case and the defendant was absent and the trial Court decreed the case professedly ex parte against the defendant. The decree was therefore under Order 9, Rule 6 and it was open to the defendant to apply to have the ex parte decree set aside.
3. We accordingly allow this appeal and setting aside the order of the Court below send the case back to that Court with direction to dispose of the case on the merits. The appellant will have his costs in this Court. Costs in the Court below will abide the result of the application.