1. This is an application for the revision of an order of the Additional Subordinate Judge of Gorakhpur, upholding the order of the Additional Munsif of Deoria dismissing the applicants' application for setting aside an ex parte decree. The circumstances were that in a suit against several defendants the present applicant, who is one of those defendants, filed a written statement and applied to the Court for an inspection of the spot. An inspection was made and also an inspection note. But on 2nd June 1931, the date fixed for final disposal, the applicant did not appear in Court and the Court gave an ex parte decree against him. An application was made for the setting aside of that ex parte decree, and as we have remarked above, it was dismissed by the original Court and by the lower appellate Court.
2. This application is now made on the ground that the Court had no jurisdiction to deal with the application under Order 9 because the proceedings were not actually ex parte proceedings owing to the fact that the applicant had made appearance and had filed a written statement. It is claimed therefore that the order of the trial Court dismissing the application must be deemed to have been passed not under any of the Rules of Order 9 but under Order 17, Rule 3, and in this connection I have been referred to the decision of Manmohan Das v. Krishna Kant Malaviya : AIR1933All4 .
3. It will be observed that the applicant himself originally treated the Munsif's order as one passed under Order 9, and made an application for the setting aside of the ex parte decree. Apart from this, it is open to doubt whether the Rules relating to adjournments under Order 17 could possibly be made to apply in a case like the present one, where there had been no time granted to either of the parties, although there had been postponements from time to to time as is shown by the order-sheet. It appears to be quite clear at any rate that Rule 3 of Order 17 cannot be made to apply to this case, for that is a Rule which is made specially applicable in a case where any party to whom time has been granted fails to perform any act necessary for the further progress of the suit. But in the present case time was not granted to the present applicant. He cannot therefore rely on that Rule.
4. Even if it be held that there was an 'adjournment, in the present case and that Order 17 could be made applicable, it is clear that under Rule 2 the Court had jurisdiction in the circumstances of this case, when the defendant failed to appear, to proceed to dispose of the suit by one of the modes directed in that behalf in Order 9, and that is in fact what the Court did. There is therefore no force in the application for revision and it is dismissed with costs.