JUDGMENT D.N. Roy, J. - This is a civil revision under section 25 of Small Cause Courts Act by Laxmi Chand who was defendant No. 1 in the Court below. The revision came up before a learned single Judge of this Court who, on account of the decision in Pitamber Prasad v. Sohan Lal, 1956 ALJ 827 has referred it to a Division Bench. 2. The facts may be briefly stated. In July, 1951, the suit was instituted in the court of Small Causes for recovery of a sum of Rs. 670. It had a chequered history. Ultimately the case was fixed for hearing on 20-9-1954. On that date upon a motion of defendant No. 1 on the ground that his counsel was ill and was therefore not in a position to conduct the case on his behalf, the case was adjourned to 8-11-1954. Before that date was reached, the court found that the date fixed was far off date and the case was an old one. The court therefore altered the date suo motu to 11-10-1954, by order dated 23-9-1954. The order was communicated to counsel for both parties and was either signed by them or by their clerks. On 11-10-1954, when the case was called on for hearing defendant No. 1 was found absent and his counsel stated that he had no instruction. 3. The Court therefore proceeded to examine the witnesses of the plaintiff and to decide the suit on merits under the provisions of O. XVII, R. 3, CPC. The court specifically stated:-- "This case was fixed for hearing on 20-9-1954 when on the motion of the defendant No. 1 it was adjourned to 8-11-1954. Then on 23-9-1954 the court ordered that as the case was very old it shall come for final hearing on 11-10-1954 instead of 8-11-1954 and this order was duly communicated to all the parties including the defendant No. 1. Today the defendant No. 1 has absented himself. It may also be noted that on 27-7-1954 the case was adjourned on the motion of defendant No. 1 subject to payment of Rs. 10 as adjournment costs and the defendant No. 1 has (?) to pay the costs. In the circumstances I have proceeded u/O. XVII, R. 3 CPC and the case is being decided on merits against defendant No. 1 also. 3. 10 as adjournment costs and the defendant No. 1 has (?) to pay the costs. In the circumstances I have proceeded u/O. XVII, R. 3 CPC and the case is being decided on merits against defendant No. 1 also. 3. After making that observation, the court upon the evidence that was produced by the parties decreed the suit for Rs. 670 with costs. 4. No revision was preferred by defendant No. 1 against that order. On 29-10-1954, the defendant No. 1 made an application u/O. IX, R. 13 of the Code for the setting aside of the decree aforesaid. The application was dismissed by the court on 4-12-1954 by the following order:- "The suit was decided on merits and so no application u/O. IX, R. 13 is maintainable. Application is rejected." 5. It is against this order that the present revisional petition has been made. 6. After hearing learned counsel for the parties we are of opinion that the case clearly fell within the purview of O. XVII, R. 3 of the CPC as amended by this Court. It was a case where a party to a suit to whom time had been granted, failed to perform an act necessary to the further progress of the suit for which time had been allowed to him and the court therefore, notwithstanding such default, proceeded to decide the suit on merits after taking the evidence of the plaintiff. It may be mentioned that on the 11th of October, the counsel who had entered appearance on behalf of the defendant No. 1 had stated that he had no instructions. It is obvious that even on that date that defendant No. 1 did not engage a counsel who had been instructed by him to defend the suit on his behalf. He evidently failed to carry out the purpose for which the adjournment had been taken by him, namely, to have a counsel present to conduct the case on his behalf. 7. The scope of O. XVII, R. 2 and 3 of the Code has been considered by this Court in a number of cases. He evidently failed to carry out the purpose for which the adjournment had been taken by him, namely, to have a counsel present to conduct the case on his behalf. 7. The scope of O. XVII, R. 2 and 3 of the Code has been considered by this Court in a number of cases. In Sri Krishen v. Radha Kishan, 1950 ALJ 799 it was held that when a party asks for an adjournment of a case which has been fixed for final hearing and the court fixes another date again for final hearing, the implication is that the party who obtains the adjournment obtains it for the purpose of taking steps necessary for the prosecution of the suit, to perform necessary acts for the further progress of the suit, and if he fails to appear on the adjourned date, the court has jurisdiction to pass an order under the provisions of O. XVII, R. 3 dismissing the case on merit on the ground that the claim of the plaintiff or applicant had not been proved; and that this order can be passed even though the plaintiff or the applicant is absent on the date of hearing. 8. As far back as 1923 a similar question came to be considered by this court in Nasir Khan v. Itwari, 21 ALJR 667. There on an application being made to execute a decree against the judgment debtor, the latter objected that the application was time barred. The trial court dismissed the objection. The objector appealed and the date fixed for the hearing of the appeal, failed to put in an appearance, nor was he represented by a counsel. The Judge thereupon dismissed the appeal on merits. The appellant came to this Court in second appeal and urged that u/O. XLI, R. 17 the learned District Judge should not have dismissed the appeal on merits, but should either have allowed an adjournment or should have dismissed it for default. A Bench of this Court, relying upon a Madras decision in Muhammad v. Manavi Krama, ILR 45 Mad. The appellant came to this Court in second appeal and urged that u/O. XLI, R. 17 the learned District Judge should not have dismissed the appeal on merits, but should either have allowed an adjournment or should have dismissed it for default. A Bench of this Court, relying upon a Madras decision in Muhammad v. Manavi Krama, ILR 45 Mad. 882 held that the right of appeal does not depend on what the court ought to have done but on what it actually did; that what it actually did was to pass a decree on merits; that against such a decree the law allows an appeal; and that when the appeal comes up for decision, the appellate court has then to decide whether the order passed was proper order and one which the court below had jurisdiction to pass; and that if it decides this question in the negative, it will set the order aside; and the respondent's reasoning would deprive the aggrieved party of the right of appeal just in those cases in which it is most needed. 9. The matter again came up for consideration before a Bench of this Court in Faiyaz Khan v. Mithan, 1953 ALJ 653. In that case 29-2-1952, was fixed by the Civil Judge for the hearing of a suit. On that date counsel for the defendant applied for an adjournment as the defendant was not present and the hearing was adjourned to the 14th of March. On the adjourned date the defendant was absent and his counsel stated that he had no instructions, whereupon counsel for the plaintiff asked the court to proceed to decide the suit u/O. XVII, R. 3. The court purported to do so. It recorded the evidence of the plaintiff and two witnesses, delivered judgment in favour of the plaintiff and a decree was drawn up in accordance with the terms of the judgment. One month later, that is on the 14th of April, the defendant applied to the court for the decree to be set aside u/O. IX, R. 13. This application was dismissed by the learned Civil Judge in a brief order in which he said: The application does not lie as the decision was on merits u/O. 17, R. 3, CPC. 10. This application was dismissed by the learned Civil Judge in a brief order in which he said: The application does not lie as the decision was on merits u/O. 17, R. 3, CPC. 10. When an appeal was taken to this Court it was observed, relying upon the decision in Nasir Khan's, 21 ALJR 667 case and also upon the decision in Sri Krishen v. Radha Kishen, 1950 ALJ 799, cited above, that if the order granting the plaintiff a decree is actually made by the court u/O. XVII, R. 3, an application by the defendant u/O. IX, R. 13 will not lie and the defendant's remedy is by way of appeal or review; and that what has to be considered in such cases is the power vested in the judge who decided the suit; and if in so deciding it he purported to act u/O. XVII, R. 3, he could have no jurisdiction u/O. IX, R. 13 of the CPC to set aside the decree which he had passed. It was further observed that his order may be wrong, but so long as it stands he has no power to alter it. 11. In the present case the court specifically mentioned that it was proceeding u/O. XVII, R. 3. The court had the jurisdiction to proceed as such. Obviously therefore O. IX, R. 13 of the Code did not apply, especially when all the requirements of Rule 3 Order 17 of were there and the court chose to invoke those provisions in aid of the plaintiff. 12. Our attention has been drawn to another decision of this Court in Qudrutullah v. Mohammad Kasim Khan, AIR 1952 Allahabad 208. There on the date the case was adjourned for further hearing the defendant had neither summoned his witnesses, nor was present in court. The judge, after hearing arguments and considering the material on the record, purported to decide the case on merit u/O. XVII, R. 3. He dismissed an application u/O. IX, R. 13 for setting aside the order, holding that he had no jurisdiction to set aside the order as the decree was not an ex parte decree. The judge, after hearing arguments and considering the material on the record, purported to decide the case on merit u/O. XVII, R. 3. He dismissed an application u/O. IX, R. 13 for setting aside the order, holding that he had no jurisdiction to set aside the order as the decree was not an ex parte decree. It was held by a Bench of this Court that the court was bound to proceed u/R. 2, and therefore the suit must be deemed to have been decided ex parte, when the defendant fails to appear on the date fixed and that the court was wrong in its view that it had no jurisdiction to consider the application. In this case it seems that it was more on equitable grounds that the case had been decided. It was observed:-- "On the whole, we consider it is more satisfactory, as a party, who did not appear, will in that case get an opportunity of placing materials before the Court, setting out the reasons for his absence and his inability to appear. The Court, whenever it is not satisfied that there was sufficient reason for such absence, will no doubt properly deal with the application without being functus officio and unable to decide the question even if there was good ground for absence. 13. After making that observation, the Bench was of opinion that the lower court was wrong in is view that it had no jurisdiction to consider the application and accordingly allowed the appeal, set aside the order of the court below and sent the case back to that court to decide the application u/O. IX, R. 13 on merits. 14. There is thus a preponderance of opinion of this Court in favour of the view that if the order granting the plaintiff a decree is actually made by the court under O. XVII, R. 3, in circumstances where R. 3 may be attracted and not covered by R. 2, an application by the defendant u/O. IX, R. 13 will not lie. What has to be considered in such cases is the power vested in the judge who decided the suit and if in so deciding it he purported to act u/O. XVII, R. 3, he could have no jurisdiction u/O. IX, R. 13 to set aside the decree which he had passed. What has to be considered in such cases is the power vested in the judge who decided the suit and if in so deciding it he purported to act u/O. XVII, R. 3, he could have no jurisdiction u/O. IX, R. 13 to set aside the decree which he had passed. His order may be wrong, but so long as it stands he has no power to alter it. In this view of the matter it seems to us that the restoration application had been rightly rejected. There is no force in this revision and it is dismissed with costs.