JUDGMENT : Mohapatra, J. - This is a petition under Code, brought by the widow of the original circumstances: Section 115, Civil Procedure Plaintiff in the following: The husband of the Petitioner had brought a suit (T.S. No. 33/56) in the court of the Munsif of Aska for specific performance of contract for sale of land on the basis of a registered agreement dated 20-2-40. The Defendant resisted the claim on the ground of insanity. The suit was decreed and the Defendant appealed. During the pendency of the appeal, however, the husband of the Petitioner died and the appeal was dismissed as having been abated. The Defendant came up before this Court. By an order dated 8-8-52, this Court in Misc. Appl. No. 16 DE 1950 set aside the order of abatement and sent back the case to be herd on merits by the lower appellate Court. The learned Subordinate Judge, who heard the appeal, however, remanded the case with a direction that a fresh specific issue had got to be framed on the question of insanity on the date of the registered agreement and the Munsif ought to dispose of the matter in accordance with law after allowing parties to adduce further evidence if they so choose. An additional issue was framed on 11.2.54. The case was fixed for 21st February 1954 for fixing a date of hearing and ultimately it came up for hearing on 5.4.54. There was no appearance on behalf of the Plaintiff. The Defendant, however, was ready with evidence and the learned Munsif allowed the Defendant to go on with evidence. On the evidence already on record and the additional evidence recorded by the Munsif after remand the Plaintiff's suit was dismissed on 1-4.54. Against this order of dismissal the Plaintiff Petitioner however chose file a petition for restoration of the suit under Order IX, Rule 9, Code of Civil Procedure. Both the Courts below have found that the petition under Order IX, Rule 9 was incompetent as the order passed by the learned Munsif on 1.4.54 was a decree coming under the provisions of Order XVII, Rule 3, Code of Civil Procedure. The Plaintiff had certainly sufficient remedies by way of appeal against the decree and a Second Appeal it the conditions of Section 100, Code of Civil Procedure. were satisfied. 2. The Plaintiff had certainly sufficient remedies by way of appeal against the decree and a Second Appeal it the conditions of Section 100, Code of Civil Procedure. were satisfied. 2. The point that will determine the fate of the present Civil Revision is a simple one, that is whether the order passed by the learned Munsif on 7.4.54 is a regular judgment and decree within the meaning of Order XVII, Rule S or that the case really comes under the provisions of Order XVII, Rule 2 where indeed the provisions of Order IX would apply. Before proceeding further it is better to quote Order XVII, Rule 3 which runs as follows: Where any party to a suit to whom time has been granted tails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. 3. It has been well settled by high authorities of several High Courts that if really the hearing of the suit had commenced and there were materials on record already accepted by the Court, the case could not go for default of a party, out a regular judgment and decree must follow in accordance with the provisions of Order XVII, Rule 3. Apart from this well established principle, the present case of course stands on a much better footing to lead me to the conclusion that. The case comes under Order XVII, Rule 3, and as such the provisions of Order IX have no application. I will quote in this connection the last portion of the order of remand. "Appeal be allowed on contest and the suit be remanded back to the lower Court for framing an issue as stated above and for recording further evidence which parties may like to adduce and disposing of the suit afresh according to law on the basis of existing evidence and the evidence to be adduced by the parties hereafter during the trial." It is very fairly clear to me from the order of the learned Subordinate Judge that the parties were given option of adducing further evidence in support of their case on the additional issue of insanity on the date of the registered agreement. There is no doubt that, the trial of the suit had dosed. The matter came up in appeal and it went for further evidence, the parties having been given opportunity of adducing further evidence. Such circumstances definitely bring the case within the language of Order XVII, Rule 3 if the Plaintiff did not adduce evidence and the Defendant was ready with evidence and the Court recorded the evidence of the Defendant and his witnesses after remand. According to the dear language of the Rule itself I find both parties were allowed opportunities and time to produce additional evidence and they were given further opportunities to perform other acts, that is, producing documents and examining witnesses "necessary to the further progress of the suit". In this view of the matter, therefore, in my opinion, this is a clear case under Order XVII, Rule 3 and the learned Munsif was perfectly justified in writing out a regular judgment and framing a decree on the basis of the judgment. The remedy of the Plaintiff was by way of coming up in a regular appeal and not by presenting a petition under Order IX, Rule 9 which definitely, is incompetent. 4. The Civil Revision therefore, is dismissed but there will be no order as to costs. As it is a hard case, the parties are to bear their own costs throughout in the proceedings under Order IX, Rule 9, Code of Civil Procedure. Revision dismissed. Final Result : Dismissed