Henry Richards, C.J. and Pramada Charan Banerji, J.
1. This is an appeal against an order refusing to entertain an application under Order IX, Rule 9 of the Code of Civil Procedure. The facts are as follows : The suit was a suit to recover a large sum of money alleged to be due on foot of two mortgages. One of the pleas raised by the defendant was that the plaintiff had not obtained a succession certificate to collect the debts. There seems to have been some unavoidable delay in obtaining the certificate for which the plaintiff was not responsible and the court after hearing witnesses had allowed the plaintiff time to obtain a certificate on a number of occasions. Finally the 17th of July, 1914, was fixed. On that day neither the plaintiff nor the plaintiff's pleader appeared. The court proceeded to decide the case on the merits. It found that the bond was duly executed that the amount was due, but that the succession certificate, not having been obtained, the plaintiff was not entitled to succeed. The court made a decree dismissing the suit with costs. The plaintiff then made an application under Order IX, Rule 9. The learned Subordinate Judge was of opinion that Order IX, Rule 9, did not apply and dismissed the application with costs. It is from this order that the plaintiff appeals to the High Court.
2. Order XVII, Rule 2, provides as follows : 'Where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.' In our opinion if a court intends to dispose of a case where neither the plaintiff, nor his pleader, appears on a day to which the hearing of the suit has been adjourned, it must make an order under Order IX, Rule 8. It is not entitled to proceed to decide the suit on the merits. It is contended that the concluding words of the rule 'or make such order as it thinks fit' entitle the court to decide the case. We do not think that this is the true construction of these words. In the very next rule where it is intended that the court should decide the suit the words used are different. The court is directed to 'proceed to decide the suit forthwith.' In our opinion, therefore, the court below ought not to have decided the suit on the merits, but ought, if it did not intend to give the plaintiff or her pleader any other opportunity of appearing, to have dismissed the suit for 'default of appearance.' Had it done so, the plaintiff would have had a right to make an application under Order IX, Rule 9, and that application would have been decided on its merits. It is contended on behalf of the respondents that the court, rightly or wrongly, having made a decree the proper remedy was to appeal from the decree. There is considerable force in this argument. We find, however, that when the application was made to the court below, the applicant asked that the application should be treated as an application for a review of judgement. We think under the peculiar circumstances of this case and having regard to the fact that the decree of the court below was not justified by law, it ought to have treated the application as one for a review of judgement, particularly when the plaintiff's pleader asked that, that should be done. We think the justice of the present case will be met by sending back the case to the court below with directions to treat the application as one for review of judgement. It is stated that there is already pending an application for a review of Judgment in the court below. If this be the case the court can put up both matters and dispose of them at the same time. We accordingly allow the appeal, set aside the order appealed from and remand the case with directions to the court below to re-admit the application and treat it as one for review of judgement. We make no order as to costs.