JUDGMENT Pandey, J.- 1. This is a defendants appeal against a decree for Rs. 52,535- with proportionate costs and future interest which was passed against them on account of price of 3307 tons of coal supplied to them at Rs. 14/9 per ton and other incidental charges. 2. The plaintiff, Rewa Coalfields Ltd., has coal mines at Burha and Sahdol. The defendants, who are partners of a registered firm, Chaurasia Limestone Company, Satna, manufacture lime and require coal for use in their kilns at Satna. The plaintiff alleged that, between January 1952 and March 1053, it supplied to the defendants 3307 tons of coal at the rate of Rs. 14/9 per ton. Since the defendants did not pay the price, the plaintiff laid this suit claiming Rs, 52,537/14, including Rs. 1,505 on account of sales tax and Rs. 2,872/3 on account of interest. The defendants resisted the claim inter alia on the ground that, for the supplies made between June 1951 and March 1953, they paid the entire price except Rs. 7,496/11 and that the supplies prior, to June 1951 were made by Messrs Sood Brothers. Calcutta to whom payments for those supplies had been duly made. After issues were framed, the case came up for trial on 27 August 1954 and subsequent dates. On 12 October 1954, the defendants applied for, and obtained, an adjournment to produce additional evidence on condition that they should pay to the plaintiff Rs. 200 as costs. On the adjourned date, 8 November 1954, the defendants neither appeared nor paid the costs. The Judge then proceeded ex parte against them and passed on the following day an ex parte decree. Against that decree, the defendants preferred this appeal on 17 February 1955 when the prescribed period of limitation had already expired on the previous day. On 19 February 1955, they filed an application under section 5 of the Limitation Act for condonation of that one day's delay in filing the appeal on the ground that, on 16 February 1955, Ramlal, one of the defendants who was in charge of the limitation, suddenly fell ill. The learned Judicial Commissioner of Vindhya Pradesh declined to condone the delay and dismissed the appeal on 6 August 1955. The learned Judicial Commissioner of Vindhya Pradesh declined to condone the delay and dismissed the appeal on 6 August 1955. Being aggrieved, the defendants applied for, and obtained, a certificate of fitness under Article 133 of the Constitution and preferred a further appeal to the Supreme Court, which sent back the case for disposition merits after condoning the delay in filing the first appeal. The authorised report of the judgment of the Supreme Court is Ramlal, Motilal and Chhotelal Vs. Rewa Coal-field; Ltd. (1962) 2 SCR 762 . This is how the appeal is now before us. 3. The only point urged in support of this appeal is that the Additional District Judge was not justified in refusing to adjourn the case and passing an ex parte decree. The Learned counsel for the plaintiff has, however, argued that, since the defendants had made an application for setting aside the ex parte decree, it is no longer open to them to challenge the ex parte decree. In our opinion, this argument proceeds on a misconception of the true position. Section 96 (2) of the Code of Civil Procedure expressly provides for an appeal from a decree which is passed ex parte. Similarly, the aggrieved defendant is entitled to make an application under Order 9 Rule 13 of the Code for setting aside the ex parte decree. The Code has given these two remedies and neither should be regarded as operating in derogation of the other. So, the Privy Council held in Radha Raman Shaha Vs. Pran Nath Roy, ILR 28 Cal 475 PC, and Khagendra Nath Mehata Vs. Pran Nath Roy, ILR 29 Cal 395 PC that the rejection of an application for setting aside an ex parte decree and the fact that the defendant had not appealed from the order rejecting it did not bar a challenge to the decree on another ground, namely, fraud. As pointed out by the Privy Council, a provision like Order 9, Rule 13 limits the attention of the Court to specific, matters. The correct position, we think, is that the appeal against an ex parte decree, in so for as it is grounded on the merits of the case, cannot be regarded as barred by reason of the fact that the defendants had earlier made an application under Order 9, Rule 13 for setting aside the ex parte decree. The correct position, we think, is that the appeal against an ex parte decree, in so for as it is grounded on the merits of the case, cannot be regarded as barred by reason of the fact that the defendants had earlier made an application under Order 9, Rule 13 for setting aside the ex parte decree. It has accordingly been held that both the remedies, which are intended to meet different situations, may be prosecuted simultaneously and that it is permissible to set aside an ex parte decree so long as it has not merged in the decree passed in appeal; Rifagat Husain Vs. Mst. Bibi Tawaef, ILR 39 All. 393, Kalimuddin Ahmmad Vs. Esahakuddin, ILR 51 Cal. 715, and Ram Rakhan Vs. Govind Das, AIR 1945 All 352. 4. The further question is whether, in an appeal against an ex parte decree, the appeal Court can consider if the Court below was justified in proceeding ex parte or passing an ex parte decree. Section 105 of the Code, which prima facie applies to an order from which no appeal lies, reads : "105 (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness." It is plain that an erroneous, defective or irregular interlocutory order, which affects the decision of a case, may be challenged in the appeal against the decree, whether ex parte or otherwise, which is passed in that case. But the error, defect or irregularity must be either in law or procedure and not in matters of fact : Baldeo Lall Vs. Musammat Matisara Kuer, ILR 9 Pat 102. It has also been held that an improper refusal of adjournment is liable to be questioned in appeal because it affects the decision of the case within the meaning of section 105 of the Code: S. N. Mullick Vs. Musammat Matisara Kuer, ILR 9 Pat 102. It has also been held that an improper refusal of adjournment is liable to be questioned in appeal because it affects the decision of the case within the meaning of section 105 of the Code: S. N. Mullick Vs. Ganga Gape, AIR 1925 Pat 534, and Jhandoo Mal and Sons Vs. Khalsa Singh Sahi, ILR 1940 All 192. It will be readily seen that the grounds on which such an order can be challenged are different from any question arising under Order 9, Rule 13. An appeal against an ex parte decree under section 96 (2) of the Code cannot be allowed to be converted into a proceeding for setting aside that decree with the concomitant duty of affording to the parties an opportunity of adducing evidence for an against any ground that may be raised in support thereof under Order 9, Rule 13. Nor can such an appeal be converted into an appeal under Order 43 Rule 1 (d). The reason is that when a particular remedy is provided for setting aside an ex parte decree and there is, by way of appeal, another special remedy against an order refusing to set it aside, those remedies and none other must be followed. 5. This question was considered in Humi vs. Aziz-ud-din, ILR 39 All 143, Richards, C.J. observed as follows: "In my opinion, once the Munsif had made the decree in the absence of the defendants, he must be deemed to have passed his decree 'ex parte' and if the defendants complained that the decree should not have been 'made in their absence, their only remedy was to apply to have it set aside and the case restored. They could, no doubt, challenge the decree by way of appeal (section 96) upon the ground that the evidence which the plaintiff had adduced was not sufficient to justify the decree but they were not entitled to an appeal from the decree to go into any question connected with their nonappearance at the hearing." The view taken in this case and certain observations made in Jonardan Dobey Vs. Ramdhone Singh, ILR 23 Cal 738 (FB), were relied upon in Raj Chandra Dhar Vs. Messrs. Ramdhone Singh, ILR 23 Cal 738 (FB), were relied upon in Raj Chandra Dhar Vs. Messrs. D. D. O. C. Ray, ILR 2 Rang 108, for holding that the question of due service of summons was the subject matter not of an appeal from the decree but of the special proceeding under Order 9. The Allahabad case was followed in Syed Mazhar Hussain Vs. Sheikh Rafic Hussain, AIR 1925 Oudh 645 also and it was observed that, when a specific remedy with a particular period of limitation was provided by law, a party must avail of it and cannot make it a ground of appeal under the general provision granting a right of appeal from an ex parte decree. We may also mention in this connection a later case of that Court-Ganesh Dase Varma Vs. Hari Chand, AIR 1934 Oudh 131(1). 6. Our attention has been drawn to some authorities in support of the contrary view. In Krishna Ayyar Vs. Kuppan Ayyangar, ILR 30 Mad 54 (FB), there are observations to the effect that the appeal lay against an ex parte decree, apart from the merits, on the ground that the defendant, in failing to appear, was not really in default but the main question considered there was whether, after the decree had been thus set aside in such appeal, there was any power of remand in the absence of any specific provision in the old Code to do so. In Ghulam Haider Vs. Jiwan, ILR 3 Lah 357, an interlocutory order was challenged on the ground that the Court was wrong in proceeding to decide the suit ex parte without giving to some of the parties notice of the change of place of hearing. In Jethalal Girdhar Vs. Varajlal Bhaishankar, ILR 46 Bom 184, Maclead, C. J. observed that an order refusing an adjournment might form a ground of appeal at whatever stage it might have occurred and if the appellate Court came to the conclusion that it was wrongly refused, it had the power to set aside the decree and order a re-trial. In Jnanendra Vs. Profullananda, AIR 1928 Cal 812, also an interlocutory order improperly refusing an adjournment was challenged, Mukherji, J. observed as follows. In Jnanendra Vs. Profullananda, AIR 1928 Cal 812, also an interlocutory order improperly refusing an adjournment was challenged, Mukherji, J. observed as follows. "Apart from authorities it seems to me to be perfectly clear that when a suit has been decided ex parte, the remedy by way of appeal from the ex parte decree as well as the remedy by way of application under Order 9 Rule 13 are both open to the persons against whom the decision was passed. It is true that if he avails of the remedy by way of application under Order 9 Rule 13, he is in a position of greater advantage then he would be if he preferred an appeal from the ex parte decree itself. This would be by reason of the fact that he would be able to establish by adducing evidence that he was unable to appear owing to circumstances over which be had no control, whereas if he prefers an appeal from the ex parte decree Itself, the Court would have to proceed upon the record as it stands and to determine upon the materials that are on the record whether the application for adjournment was rightly granted or not. The question as to whether the order refusing the application for adjournment was rightly passed or not is, in my opinion, somewhat different from the question as to whether the absenting party was prevented by sufficient cause from not appearing in the course of the proceedings. The two no doubt are inter-related but the considerations are not quite the same." In Ramlal Gope Vs. Kali Prasad Sahu, ILR 9 Fat 408, an interlocutory order indicating a defect in procedure was successfully challenged. The Court observed:- "In my opinion it is open to a defendant to prefer an appeal against the ex parte decree as also to make an application under Order IX, rule 13, and then to come up in appeal under Order XLIII, rule 1, clause (d). If he follows the special procedure of Order IX, he will have an opportunity of placing before the Court materials as to why he was precluded from being present whent he case was tried ex-parte. If he follows the special procedure of Order IX, he will have an opportunity of placing before the Court materials as to why he was precluded from being present whent he case was tried ex-parte. On the other hand, if he proceeds straight in an appeal against the original ex parte decree, he will be at some disadvantage, because the Court of appeal will not be in possession of the materials which prevented his appearance. If, however, defendant can show that there is an error, defects or irregularity in an order rejecting his application for time, which affects the decision of the case, there is no reason why he will not succeed even if he does not adopt the special procedure for a restoration of the suit and comes up in second appeal so long as he can bring the case within the purview of section 100 of the Code of Civil Procedure." In the case of this Court, Ramballabh Jasraj Vs. Messrs. Dharmsi Jetha and Co., 22 MPLC 294=ILR 1937 Nag, 519 the defendant challenged an order refusing to grant an adjournment for filing a written statement and proceeding ex parte against it. It would thus appear that, in all these cases, except the Madras case which was decided with reference to the provisions of the old Code, the aggrieved parties had, as permitted by section 105 of the Code, challenged in appeal erroneous or improper interlocutory orders. 7. In our opinion, it is open to a defendant, who has filed an appeal against an ex parte decree under section 96 (2) of the Code, to show from the record as it stands that there is, in the order proceeding ex parte against him, any error, defect or irregularity which has affected the decision of the case. If he succeeds in so doing, the ex parte decree will be set aside and the case will be remitted for retrial. But, in the appeal against the ex parte decree, he cannot be allowed to show that he was prevented by any sufficient cause from appearing at the hearing. For that purpose, he must have recourse to the special procedure under Order 9 Rule 13 of the Code for setting aside the said decree. 8. But, in the appeal against the ex parte decree, he cannot be allowed to show that he was prevented by any sufficient cause from appearing at the hearing. For that purpose, he must have recourse to the special procedure under Order 9 Rule 13 of the Code for setting aside the said decree. 8. Even apart from what we have stated in the foregoing paragraphs, we are unable to accept that, in the circumstances of this particular case, the failure of the defendants to appear on 8 November 1954 was bona fide or was justified by any sufficient cause. On 1 October 1954, the defendants had applied to the Court for adjourning the trial fixed for 11 October 1954 on the ground that their counsel Shri Awadh Behari had not returned from his excussion to Kashmir. This application was rightly refused because there was sufficient time to engage another counsel. On the same day (1 October 1954), they belatedly applied for summoning their witnesses who were directed to be summoned at their risk on their under taking to get them served. However, on 12 October 1954, they applied for, and succeeded in taking, a fresh adjournment for 8 November 1954 to produce additional evidence on their paying Rs. 200/- as costs. Before that date arrived, on 5 November 1954 to be more precise, they applied for another adjournment on the ground that, on that date, their counsel Shri Awadh Behari would be required to remain present at Chhatarpur in connexion with the visit of a Minister of the Union Cabinet and that their other counsel, Shri R. K. Shukla, would then be in Delhi. The Judge refused to grant further adjournment by pointing out that Shri Awadh Behari had already declined to appear in the case and another counsel could be engaged in place of Shri Shukia. It was in these circumstances that, on 8 November 1954, the defendants neither appeared nor paid the adjournment costs. The Judge then proceeded ex-parte against the defendants, heard the plaintiff's counsel and closed the case for judgment. After the case had been so closed, the Judge received at 2 P. M. on the same day the following telegram from the defendants: "Ramlal being ill unable attend Court for statement. Pray adjournment for December. The Judge then proceeded ex-parte against the defendants, heard the plaintiff's counsel and closed the case for judgment. After the case had been so closed, the Judge received at 2 P. M. on the same day the following telegram from the defendants: "Ramlal being ill unable attend Court for statement. Pray adjournment for December. Motilal Chaurasia." After jedgment was delivered on 9 November 1954, the defendants made on 7 December 1954 an application for setting aside the ex-parte decree on the ground that Ramlal suffered from a sudden attack of dysentery with the consequence nor could he send any intimation to his counsel. This application was supported by an affidavit and a medical certificate. The facts mentioned in the application were controverted in the reply filed by the plaintiff and it was stated therein that Ramlal was not ill on the date of hearing, that he had attended a meeting of the Congress Committee on that date and that he had wilfully abstained from appearing in the case. A counter-affidavit was also filed in support of those facts. Thereafter, the defendants remained absent and allowed their application to be dismissed in default on 8 February 1955 and then they filed this appeal. 9. Shri Dabir, learned counsel for the defendants, has drawn our attention to Dick Vs. Piller, (1943) 1 All ER 627 for the view that a Court is not justified in refusing adjournment on the ground of illness which is supported by an uncontradicted medical certificate. In the instant case, no one appeared and no medical certificate was produced on 8 November 1954 when only a telegram was sent requesting for an adjournment. When the medical certificate was subsequently filed to support the application for setting aside the ex-parte decree, it did not rem1in uncontradicted. An affidavit was filed by the plaintiff to show that, on the relevant date, Ramlal was not ill, that he had attended a meeting of the Congress Committee and that he had wilfully abstained from appearing in the case. Presumably, it was the fear of hurtful disclosures which induced the defendants to allow their application for setting aside the ex-parte decree to be dismissed in default. Presumably, it was the fear of hurtful disclosures which induced the defendants to allow their application for setting aside the ex-parte decree to be dismissed in default. In the facts and circumstances of this case, we are of opinion that the defendants were not prevented by any sufficient cause from appearing in the case on 8 November 1954 and that bona fides on their part were completely lacking. 10. Since the lower Court's decree has not been challenged before us as unsupportable on merits on any other ground, we dismiss this appeal. Costs here shall follow that event. Hearing fee according to schedule.