JUDGMENT R.S. Pathak, J. - This is a Defendant's revision application u/s 115 of the CPC against an order of the court below refusing to set aside an ex parte decree. 2. A suit was filed by the Plaintiff-opposite party for possession and damages. After the written statement had been filed by the Defendant, issues were struck and proceedings for final hearing were taken by the trial court. The Plaintiff led evidence and after his evidence was closed, the Defendant filed an application for time to file certain papers. On 17-5-1967, the trial court allowed the application and granted time for the purpose. Subsequently however, another application was made by the Defendant for further time to file the papers and on 7-7-1967, the trial court recorded an order declaring that the Plaintiff's evidence had been closed and that time was granted to the Defendant upto 27-7-1967, for filing the papers. However no papers were filed by the Defendant by that date. The trial court then fixed 18-8-1967, for final hearing. On that date, an application was made by counsel for the Defendant praying for adjournment of the case. The trial court rejected the application and recorded an order declaring that the Defendant's evidence had closed. On the same date the trial court decreed the suit ex parte on the merits. Thereafter on 12-9-1967, the Defendant filed application Under Order IX, Rule 13, CPC praying for setting aside the ex parte decree. The trial court rejected the application as not maintainable. An appeal by the Defendant was dismissed by the lower appellate court on 13-11-1968. The lower appellate court held that although there was sufficient cause for the absence of the Defendant on< 18-8-1967, the application for setting aside the ex parte decree was not maintainable as the suit had been disposed of Under Order XVII, Rule 2, Code of Civil Procedure. It is pertinent to point out that the plea of the Plaintiff that the suit had been disposed of Under Order XVII, Rule 3, was over-ruled. The Defendant then preferred the instant revision application. The case was listed before our brother J.S. Trivedi, who having regard to the apparent conflict of decisions on the point in this Court has referred this case to a larger Bench. That is how this case now comes before us. 3. The Defendant then preferred the instant revision application. The case was listed before our brother J.S. Trivedi, who having regard to the apparent conflict of decisions on the point in this Court has referred this case to a larger Bench. That is how this case now comes before us. 3. A number of decisions have been cited before us, but it seems to us that having regard to the facts of the case the revision application can be disposed of shortly. 4. It is apparent that, so far as Rule 3 is concerned, although the Defendant was given time to file the papers and no papers were filed by him by the date fixed for the purpose, the trial court did not proceed to decide the suit forthwith. The word "forthwith" contained in Rule 3 has been considered in Mst. Jaggo Vs. Kanhaiya Lal, AIR 1957 All 344 . A Division Bench of this Court observed: Moreover, even if time had been granted to the Defendant to do any such act, if the court wanted to take action under this provision of law (Under Order XVII, Rule 3), it should have proceeded to decide the suit forthwith. The court, in the present case, did not proceed to decide the suit forthwith. What had happened in that case was that the Court fixed another date in the suit and on that date proceeded to dispose it off. There is also the view taken by Madholkar, J. in Dayalji Wasanji v. Kedarnath Onkarmal and Co. AIR 1953 Nag 222. In that case the Court fixed 29-6-1950 for the Defendants to file their written statement on that date when the Defendants did not do so, it fixed another date in the case. The learned Judge pointed out: There is no doubt that time was given to the Defendants to perform an act which was necessary for the further progress of the suit, i.e. for filing the written statement and that they failed to perform the act, therefore, on 29-6-1950 it would have been open to the learned Judge to proceed against them Under Order XVII, Rule 3. As I understand this rule, a court proceeding under this provision must decide the suit forthwith i.e. on the same date and it cannot adjourn the hearing of the suit to some other date and then purport to decide the suit Under Order XVII, Rule 3. As I understand this rule, a court proceeding under this provision must decide the suit forthwith i.e. on the same date and it cannot adjourn the hearing of the suit to some other date and then purport to decide the suit Under Order XVII, Rule 3. I say so because of the word "forthwith" occurring at the end of Rule 3 of Order XVII and in my opinion that word has to be given its full meaning. The provisions of Rule 3 of Order XVII are penal in their nature and must therefore be construed strictly. Had the trial court in the present case proceeded to dispose of the suit on 27-7-1967, it might have been construed as an order Under Order XVII, Rule 3. It did not do so. It fixed 18-8-1967 for final hearing. It did not, in the sense in which this Court and the Nagpur High Court have held, proceed to decide the case forthwith. We are of opinion that the contention of learned Counsel for the Plaintiff opposite-party that Order XVII, Rule 3 applies must be rejected. 5. The alternative submission of learned Counsel is that the case falls for consideration under the second part of Order XVII, Rule 2. Order XVII, Rule 2, as amended by this Court, reads: When 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. Where the evidence, or a substantial portion of the evidence, of any party has already been recorded and such party fails to appear on such day, the Court may in its discretion proceed with the case as if such party were present and may dispose of it on the merits. Explanation:-No party shall be deemed to have failed to appear if he is either present or is represented in court by agent or pleader, though engaged only for the purpose of making an application. Now, from the facts already narrated, it is apparent that the Defendant never led any evidence at all. Consequently, the situation contemplated by the second part of Order XVII, Rule 2 did not arise. Now, from the facts already narrated, it is apparent that the Defendant never led any evidence at all. Consequently, the situation contemplated by the second part of Order XVII, Rule 2 did not arise. The situation would have arisen if the evidence of the Defendant or a substantial portion of it had already been recorded. It is the evidence of the party failing to appear which is within the contemplation of that provision. In the present case, it was the Defendant who failed to appear on the adjourned date; but no part at his evidence had been recorded. Consequently, the decree on the merits passed by the trial court cannot be considered as one passed in the exercise of the jurisdiction conferred by the second part of Order XVII, Rule 2. On the contrary, the decree passed by the trial court was a decree made ex-parte on the merits. The Defendant was treated as absent. The trial court expressly declared that the suit was decreed ex parte. The jurisdiction exercised was that contemplated by the first part of Order XVII, Rule 2 and the suit was disposed of in the mode directed by Order IX, Rule 6(1)(a). 6. It is urged by learned Counsel for the Plaintiff-opposite party that if regard be had to the Explanation added by this Court in Order XVII, Rule 2 it cannot be said that the first part of that rule applies. The Explanation declares that no party shall be deemed to have failed to appear if he is either present or represented in court by agent or pleader, though engaged only for the purpose of making an application. In the present case, no doubt an application was made for adjournment of the case by counsel for the Defendant and therefore if the Explanation is attracted it must be held that the Defendant did not fail to appear but was present. But whether the Defendant was present or failed to appear does not determine if the court was acting under the first or the second part of Order XVII Rule 2. What was the jurisdiction exercised by the court must be determined, we think, by what the court purported to do. Plainly, the court considered that it was proceeding ex parte and disposed of the suit on the merits. The decree passed by it was not made on the basis that the Defendant was present. What was the jurisdiction exercised by the court must be determined, we think, by what the court purported to do. Plainly, the court considered that it was proceeding ex parte and disposed of the suit on the merits. The decree passed by it was not made on the basis that the Defendant was present. It was passed on the assumption that he had failed to appear. It was not a decree contemplated by the second part of Order XVII Rule 2. It was a decree made under the first part of Order XVII Rule 2. The suit was disposed of in one of the modes directed by Order IX. The mode adopted was that the provided by Order IX Rule 6(1)(a). In this view of the matter, an application for setting aside the decree lay Under Order IX Rule 13. In our judgment, the finding of the lower appellate court to the contrary is erroneous. 7. No other question has been raised before us. 8. As the trial court has held that there was sufficient cause Under Order IX Rule 13 for setting aside the exparte decree but has dismissed the application only on the ground that it was not maintainable and as we are of the view that the application was maintainable, the Applicant is entitled to an order allowing his application Under Order IX Rule 13 and jetting aside the ex parte decree. 9. The revision application is allowed. The order of the courts below is set aside and the application Under Order IX Rule 13 CPC filed by the Defendant Applicant is allowed. In the result, the exparte decree in the suit is set aside. The trial court will now dispose of the suit afresh in accordance with law.