JUDGMENT 1. The decree in Original Suit No. 138 of 1920 is one passed under Order XVII, r.3 of the Code of Civil procedure, as is clear from the judgment. The mere fact that the Vakil said he had no, instructions after he had appeared for the parties at many hearings does not mean that he withdraws from the undertaking in his vakalat unless it is so stated, We must, therefore, hold that there was an appearance and Order XVII, Rule 3 applies. 2. Appellant ought, therefore, to have filed an appeal against the decree: Vide Patinhare Tarkatt Rama Mannadi v. Vellur Krishnan Menon 26 M. 267 and Gundan v. Kamakha Rama Chetti 33 Ind. Cas 660 : 3 L W 524. The filing of an application to set aside the decree, as if it had been made under Order IX, Rule 13, was, therefore, wrong as also the appeal from the order thereon. This appeal must, therefore, be dismissed with costs.