JUDGMENT H.N. Seth, J. - This is defendants application in revision against the order of the Civil Judge, Etah dated 27th of April, 1968 confirming the order passed by the Munsif, Etah, dated 7th April, 1967, refusing to set aside a decree dated May 25, 1966 under the provisions of Order IX, rule 13, C.P.C. This revision application came up for hearing before a learned single Judge of this Court who was of opinion that the decision of this Court in the case of Rajendra Kishore v. District Cooperative Development Federation, 1965 A.L.J. 575, required reconsideration. He accordingly referred the case to a Division Bench. 2. Plaintiff opposite party filed a suit before the Munsif Etah which was fixed for final hearing on 10th of May, 1966. On that date the defendant moved an application for adjournment of the case. The prayer for adjournment was not opposed by the plaintiff. The court adjourned the case to 25th May, 1966 and made the following order :- "Defendant's application for adjournment on the ground that due to illness he could not get the witnesses summoned. Opposite party has no objection except for cost. Ground sufficient. Prayer is allowed on payment of Rs. 15/- as costs fix 25-5-1966 for final hearing. No further adjournment shall in any case be allowed." 3. It appears, that on 25-5-1966 the case was called out for hearing some time before 9-30 a.m. Counsel for both the parties appeared before the Court. Counsel for the defendant informed the court that the defendant was not present and made a request that the case may be taken up after 10 a.m. as the train by which the defendant was expected to arrive reached Etah at about 9-30 a.m. The Court accepted the request made by the learned counsel and directed that the case be recalled after 10 a.m. 4. The case was recalled at 11-05 a.m. At that time the counsel for the plaintiff appeared but no one appeared on the side of the defendant. The court thereupon passed the following order :- "It is already 11-05 a.m. It is an adjourned hearing of the case to-day. The case was adjourned last on 10th May 1966, on defendant's own application. There is sufficient material on the record to decide the case on merits. The court thereupon passed the following order :- "It is already 11-05 a.m. It is an adjourned hearing of the case to-day. The case was adjourned last on 10th May 1966, on defendant's own application. There is sufficient material on the record to decide the case on merits. It is therefore a fit case to be decided on merits under Order XVII, rule 3, C.P.C. ORDER The suit shall be heard and decided on merits under Order XVII, rule 3, C.P.C. 5. Thereafter, the plaintiff examined himself and one witness in support of his case and the court immediately dictated the judgment and decreed the suit. 6. According to the order sheet, learned counsel for the defendant appeared before the Court at 11-50 a.m. and stated the reason why the defendant could not come to court in time and prayed that the order passed on that date be recalled. This application was rejected on the ground that it had been moved after the judgment had already been delivered. 7. Thereafter, on 4th of July, 1966 an application under Order IX, rule 13, C.P.C. was moved on behalf of the defendant praying that the exparte decree dated 25-5-1966 be set aside. This application came up for final hearing on 7th of April, 1967 and was rejected on the ground that the decree dated 25-5-1966 was passed on merits under Order XVII, rule 3, C.P.C. and therefore, the court had no jurisdiction to set it aside either under Order IX, rule 13, C.P.C. or under Section 151, C.P.C. 8. The defendant then went up in appeal against the order refusing to set aside the decree. The appellate court also was of opinion that the decree passed by the trial court was one under Order XVII, Rule 3, C.P.C. and that the provision of Order XVII, rule 2 C.P.C. did not apply to the facts of the case. The trial court therefore could not entertain an application under Order IX, rule 13, C.P.C. for setting aside the ex parte decree. In the result the appeal filed by the defendant was dismissed. 9. Defendant then filed the present application in revision before this Court which upon reference by a learned single Judge to a larger bench has been placed before us for decision. 10. In the result the appeal filed by the defendant was dismissed. 9. Defendant then filed the present application in revision before this Court which upon reference by a learned single Judge to a larger bench has been placed before us for decision. 10. Learned counsel for the applicant urged that when the case was called up for hearing on 25th of May, 1966 at about 11 a.m., neither the defendant nor his counsel was present before the Court. In the circumstances, the case fell within the ambit of Order XVII, rule 2, C.P.C. and the ex parte decree passed on that date could be set aside under Order IX rule 13, C.P.C. The two courts below took a wrong view of the matter and refused to exercise the jurisdiction vested in them by law. He also urged that even if for some reason it is held that the provisions of Order XVII, rule 2 did not apply to the facts of the case, the provisions of Order XVII, rule 3, C.P.C. were also not applicable and the decree passed by the court below could not be considered to the decree on merits. An application under Order IX, rule 13, C.P.C. for setting aside the ex-parte decree was therefore competent and the two courts below, therefore, have failed to exercise jurisdiction vested in them. 11. Learned counsel for the plaintiff opposite-party argued that the decree dated 25-5-1955 was actually passed on merits under Order XVII, rule 3, C.P.C. and that it says so in so many words. Even if for some reason if be held that the court was not justified in proceeding to decide the case on merits under Order XVII, rule 3, C.P.C. the mistake committed by it could be corrected only by means of a regular appeal against the decree and not by means of an application under Order IX, rule 13. In this connection he relied on a Division Bench decision of this Court in the case of Faiyaz Khan v. Mithan Lal, A.I.R. 1964 Allahabad 222. He also contended that in the circumstances of this case the provisions of Order XVII, rule 2, C.P.C. were not applicable and the learned Munsif was fully justified in proceeding and deciding the case on merits under Order XVII, rule 3, C.P.C. 12. He also contended that in the circumstances of this case the provisions of Order XVII, rule 2, C.P.C. were not applicable and the learned Munsif was fully justified in proceeding and deciding the case on merits under Order XVII, rule 3, C.P.C. 12. It is true that a Division Bench of this Court in Faiyaz Khan's case, A.I.R. 1964 Allahabad 222 laid down that if the order granting the plaintiff a decree is actually made under Order XVII, rule 3, C.P.C. an application by the defendant under Order IX, rule 13, will not lie and the defendant's remedy is by way of an appeal or review. It was further observed that what has to be considered is the power vested in the Judge who decided the suit and if in so deciding it be purported to act under XVII, rule 3, he could have no jurisdiction under Order IX, rule 13 to set aside the decree which he had passed. The order may be wrong but so long as it stands he has no power to alter it. The view expressed in Faiyaz Khan's case, A.I.R. 1964 Allahabad 222 has been dissented from by a Full Bench of this Court in the case of Seth Munna Lal v. Seth Jay Prakash, A.I.R. 1970 Allahabad, 257. According to the Full Bench, it is permissible to a Court to entertain an application for restoration under Order IX even when the Court purports to act under Order XVII, rule 3, C.P.C. if the circumstances set out in the court are such that an order under Order IX read with Order XVII, rule 2, would be legally justified and the actual order passed is one which could be legally passed under Order IX read with Order XVII, rule 2, C.P.C. 13. In view of this Full Bench decision it is open to a civil court to decide whether the decree sought to be set aside was one which could under the circumstances be passed under Order XVII, rule 2, C.P.C. or under order XVII, Rule 3, C.P.C., irrespective of the facts that the court purported to act under one or the other provision. We have therefore to go into the question, whether the provisions of Order XVII, rule 2, C.P.C. or those of Order XVII, rule 3, C.P.C. applied to the facts of the present case. 14. Rule 3 of Order XVII, as amended. We have therefore to go into the question, whether the provisions of Order XVII, rule 2, C.P.C. or those of Order XVII, rule 3, C.P.C. applied to the facts of the present case. 14. Rule 3 of Order XVII, as amended. by the Allahabad High Court, provides that, where in a case to which rule 2 does not apply any party to a suit to whom time has been granted fails to produce his evidence or to cause the attendance of his witness 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. 15. It is clear that if a case is covered by rule 2 then, notwithstanding that on the adjourned date a party to which time had been granted failed to do any of the things stated in the rule the court will have no power to proceed to decide the suit on merits under rule 3. Consideration of the question whether the order dated 25th of May, 1966 could be or was made under rule 3 of Order XVII will arise only if it is found that the order was not an order contemplated by rule 2 of Order XVII. 16. We therefore, proceed to consider whether the order dated 25th of May, 1966 was an order within the ambit of Order XVII, rule 2, C.P.C. which as amended by this Court reads as follows :- "Where 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 it 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 parties 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 an agent or pleader, though engaged only for the purposes of making an application." 17. Explanation. "No party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though engaged only for the purposes of making an application." 17. The argument of the learned counsel for the plaintiff is that in order to apply provisions of rule 2 the following conditions should co-exit :- (1) There should be a date to which the hearing of the suit has been adjourned. (2) On that date the party or any of them should fail to appear. 18. It is only when these two conditions co-exist that the Court gets a jurisdiction to proceed in one of the modes prescribed in that behalf by Order IX of the Code. The explanation added under rule 2 by this Court provides that no party shall be deemed to have failed to appear if he is either present or is represented in court by an agent or pleader though engaged only for the purpose of making an application. Although, 25th of May 1966 was a date to which the hearing of the suit had been adjourned but as on that date defendant was represented in court by his pleader who in the morning requested the Court to take up the case after 10 a.m. It cannot therefore be said that the defendant failed to appear on that date and the Court could not have proceeded to decide the case in one of the modes directed in that behalf by Order IX, as provided in rule 2, of the C.P.C. 19. Learned counsel for the applicant argued that rule 2 as originally enacted merely provided that where on any day to which the hearing of the suit has been adjourned, the parties or any of them failed to appear, the court could proceed to dispose of the suit in on one of the modes directed in that behalf by, Order IX, Allahabad High Court, by means of an amendment, added a further proviso to this rule providing that where the evidence or a substantial portion of 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 parties were present and may dispose of it on the merits. The explanation, providing that no party shall be deemed to have failed to appear if he is either present or is represented in court by an agent or pleader, was an explanation only to the provision which being added by the Allahabad High Court amendment. It had nothing to do with and did not govern the original provision of rule 2. He therefore, contends that it may be that where a substantial portion of the evidence of a party has already been recorded and such a party fails to appear on the adjourned date, but his counsel appear in court, the court may take it that the party has not failed to appear for the purpose of the provision added by the Allahabad High Court. But, the presence of the counsel cannot be equated with the presence of party for the purpose of the original provision of rule 2. 20. In this connection he relied upon the case of Mst. Jagge v. Kanhaiya Lal, A.I.R. 1957 Alld. 344, and contended that this decision supports his contention that the explanation added in rule 2 applies only to that part of the rule which was added by the Allahabad High Court. Having gone through this decision very carefully, we find that this decision runs contrary to the submissions made by the applicant. In that case the hearing of the case had initially been adjourned at the instance of the plaintiff and 28th, and 29th of September 1950 were fixed for further proceedings in the suit. On 28th September 1950 the defendant applied for the adjournment of the case. That application was rejected by Court. Defendant's counsel who had been engaged solely for the purposes of making the adjournment application withdraw from the case and thereafter the case proceeded in the absence of the defendant or her counsel. The court recorded the evidence of the plaintiff's witnesses on 28th and 29th of September 1950. On 29th September 1960 the plaintiff closed his evidence. The case was then again adjourned to other dates for argument but neither on 29th of September 1950 nor on subsequent dates the defendant or any one else on his behalf appeared before the Court. Ultimately the arguments were heard on 12th of November 1950 and the judgment was delivered on merits on 13th of November 1950. The case was then again adjourned to other dates for argument but neither on 29th of September 1950 nor on subsequent dates the defendant or any one else on his behalf appeared before the Court. Ultimately the arguments were heard on 12th of November 1950 and the judgment was delivered on merits on 13th of November 1950. Subsequently, the defendant presented an application for setting the decree passed against him under Order IX, rule- 13, C.P.C. This application was rejected on the ground that the judgment in the case had been give on merits and that the proper remedy of the defendant was by way of appeal against the decree. This Court observed as follows :- "The result of the provision of Order XVII rule 2 as amended by this court would be that the defendant would be deemed to be present in Court and represented on 28th of September 1950. Even though the defendant's counsel had withdrawn from the case and in spite of the fact that the defendant's counsel was engaged only to give the adjournment application, by virtue of the amendment by this Court, the defendant must be deemed to be represented on that date. On the subsequent date of hearing of the case neither the counsel for the defendant appeared in court. According to amendment introduced by the Allahabad High Court in order XVII, rule 2, C.P.C. the Court can dispose of the suit on merits on subsequent dates only if a substantial portion of the evidence of any party has been recorded and such party fails to appear. The use of the words such party in the above clause shows that the party failing to appear should be the party whose evidence or a substantial portion of whose evidence had already been recorded by the court. In the present case the party who had failed to appear was the defendant. The defendant had failed to appear before his evidence had started and accordingly no portion of her evidence was recorded at all. The court therefore could not dispose of the case on merits under the amended Sub-clause." 21. These observations clearly show that in the opinion of this Court, in view of the explanation added to Order 17, rule 2, C.P.C. the defendant did not fail to appear before the Court on 28th September 1950. The court therefore could not dispose of the case on merits under the amended Sub-clause." 21. These observations clearly show that in the opinion of this Court, in view of the explanation added to Order 17, rule 2, C.P.C. the defendant did not fail to appear before the Court on 28th September 1950. On 28th of September 1950 no evidence on behalf of any of the two parties had been recorded. It is, therefore, obvious that the second part added to Order 17 rule 2 C.P.C. by this Court, which provides that where before the date to which hearing of the suit has been adjourned the evidence or substantial portion of evidence of any party has been recorded and such party fails to appear on that day the court may in its discretion proceed with the case as if such party were present and may dispose it of on the merits, had no application to the facts of the case and the explanation was applied to the original provision contained in rule 2. This case therefore instead of supporting the applicant's contention that explanation added to rule 2 applies only to second part of that rule goes to show that it applies, to the first part of rule 2. 22. In the case of Gur Prasad v. Suraj Kali, 1963 A.L.J. p. 450, in a Division Bench of this Court has very clearly laid down that Order XVII, rule 2 is in two parts and that the explanation added by this Court applies equally to both the parts. we are in respectful agreement with the view expressed in these two Division Bench cases and are of opinion that the explanation added by Allahabad Amendment applies to the first part of Order XVII rule 2. We accordingly reject the submission made on behalf of the applicants that the explanation cannot be taken into consideration in determining whether the defendant failed to appear before the court on the relevant date within the meaning of the first part of Order XVII rule 2. 23. We accordingly reject the submission made on behalf of the applicants that the explanation cannot be taken into consideration in determining whether the defendant failed to appear before the court on the relevant date within the meaning of the first part of Order XVII rule 2. 23. Learned counsel for the defendant then argued that even if the explanation underneath Order XVII, rule 2, could be taken into consideration while deciding whether the defendant failed to appear within the meaning of the first part of Order XVII, Rule 2, the fact remains that when the case was called at about 11 a.m. on 25th of May, 1966, neither the defendant nor his counsel was present in court. In the circumstances, it could not be deemed that the defendant was present in court in view of explanation to Order XVII, rule 2, and if the Court proceeded to decide the suit it could do so only in the manner provided in Order IX C.P.C. and an application for setting aside the ex parte decree would therefore lie under Order IX rule 13. C.P.C. 24. In reply to this argument, learned counsel for the plaintiff opposite party urged that for applying the provisions of Order XVII, Rule 2, the party should fail to appear on the date to which the hearing of the suit had been adjourned. If the party has appeared before the court on that date at any time, it is immaterial whether the party or its counsel fail to appear subsequently, or when the case is called for hearing. In this case, counsel for the defendant did appear on the adjourned dated, in earlier part of the day and applied for being accommodated. In view of the explanation added to Order XVII rule 2, C.P.C. it cannot be said that the defendant failed to appear on the adjourned date, and the provision of Order XVII Rule 2, could not be applied. 25. Order IX, provides for the consequences of any of the parties to the suit failing to appear on the date fixed for hearing in the summons issued to the defendants. Rule I requires that on such a date the parties shall be in attendance at the court house in person or be represented by their respective pleaders and that suit shall then be heard unless the hearing is adjourned to it future date. Rule I requires that on such a date the parties shall be in attendance at the court house in person or be represented by their respective pleaders and that suit shall then be heard unless the hearing is adjourned to it future date. According to Rule 3 if neither of the two parties appear when the suit is called on for hearing the court may make an order dismissing the suit. Rule 6 then provides for a case where plaintiff appears and the defendant does not appear when the suit is called on for hearing. According to this rule if it is proved that summons have been duly served the court may proceed ex parte against the defendant. Similarly, rule 8 provides for a case where the defendant appears but the plaintiff does not appear when the suit is called on for hearing. This rule enjoins that in such a case the court shall dismiss the suit unless the defendant admits a claim or a part thereof. The Various provisions of Order IX indicate that on the date fixed in the summons, the parties are expected to appear before the court when the case is called on for hearing. 26. Order XVII, on the other hand provides for adjournment of hearing of the suit and also for the consequences that follow because of non-appearance of a party on the adjourned date of hearing. According to rule 2, if on the date to which hearing of the suit has been adjourned, the parties or any of them fail to appear the court may proceed to dispose of the suit in any one of the modes directed in that behalf by Order IX, or make such other order as it thinks fit. In order that a court may proceed under Order IX, it is necessary that on the date fixed the plaintiff or the defendant should fail to appear when the case is called on for hearing. This means that the law contemplates that even on an adjourned date of hearing presence of a party or its counsel is required at the time when case is called on for hearing. This means that the law contemplates that even on an adjourned date of hearing presence of a party or its counsel is required at the time when case is called on for hearing. On any date fixed for hearing of a suit the presence or absence of a party either before the case is called out for hearing or after the court has decided it on merits or in one of the modes provided in Order IX, has absolutely no significance or meaning. In view of the provision in rule 2, that on failure of appearance of a party a court can proceed under Order IX, it becomes clear that the intention underlying the rule is that the consequences mentioned in that rule will follow only if the party fails to appear at the time when the case is called on for hearing. If for some reason the court adopts a procedure that it becomes necessary to call out a case, more than once in a day the question as to procedure to be adopted by the court will have to be considered every time according to the situation existing at the time when the case is called out for hearing. 27. In this case when the case was called out for hearing some time before 9-30 a.m. on 25th of May, 1966 and the counsel for the defendant appeared and made a request that the case be taken up some time after 10 O'clock in view of the explanation to Order XVII, rule 2, it could not be said that the defendant failed to appear before the court at that time. It was then open to the court to pass an appropriate order. It could make an order that the defendants be accommodated and the case be called out for hearing after 10 O'clock. It was not bound to proceed with the hearing of the suit forthwith. After the court acceded to the request made by the defendant's counsel and directed that the case be called out after 10 a.m. it could not have taken up the case for hearing without its being again called out for hearing some time after 10 a.m. When the case was again called out for hearing at about 11 O'clock, the Court had again to consider the procedure to be adopted according to the situation prevailing at that time. It is the admitted case of the parties that at that time neither the defendant nor his counsel was present in court. In the circumstances even with the aid of explanation to rule 2, it could not be deemed that the defendant did not fail to appear at that time. As the defendant failed to appear at that time the provisions of Order XVII, rule 2, became applicable and if the court proceeded to decide the suit it could do so only under Order 9, rule 6, C.P.C. and the decree passed could be set aside under Order 9, rule 13, C.P.C. It is nobody's case that on that date the case could be decided on merits in accordance with the provision inserted by Allahabad amendment. 28. Learned counsel for the plaintiff-opposite party relied on a single Judge decision of this Court in the case of Rajendra Kishore v. District Cooperative Development Federation, 1965 A.L.J. 575. In this case the hearing of the suit was adjourned to 16th of October, 1962. On that date an application was moved on behalf of the plaintiff praying for the adjournment of the suit. This application was dismissed but the court directed that the case be taken up after half an hour. When the case was taken up subsequently no one appeared from the side of the plaintiff and the suit was accordingly dismissed. An application for restoring the suit to its original number under the provisions of Order IX, was allowed by the court. It held that when the case wan directed to be taken up after half an hour, it amounted to an adjournment of the case. As the adjournment was not at the instance of the plaintiff, the suit could not be dealt with under Order XVII, rule 3, and the application for restoration was maintainable. In revision, this court held that postponement of the hearing of the suit for half an hour did not amount to adjournment of the hearing within the meaning of Order XVII, C.P.C. and that in the eye of law the plaintiff was present on the adjourned date of hearing. The order dismissing the suit was thus not one for default. It was an order either under Order XVII, rule 3, C.P.C. Even if it was not an order under Order XVII, rule 3, C, P. C., it otherwise amounted to a decree. The order dismissing the suit was thus not one for default. It was an order either under Order XVII, rule 3, C.P.C. Even if it was not an order under Order XVII, rule 3, C, P. C., it otherwise amounted to a decree. In either case it was appealable and could not be set aside on an application for restoration under Order IX, rule 9, C.P.C. This case substantially supports the contention of the learned counsel. Even if postponement of the case for a short time did not amount to adjournment of the case within the meaning of Order XVII, C.P.C. in view of the aforesaid discussion, we are unable to concur in the ultimate conclusion arrived at by the learned Judge. 29. We are accordingly of opinion that when the case was called on for hearing at about 11 a.m. on 25-6-1966 and the defendant and his counsel failed to appear at that time the provisions of Order XVII, rule 2, became applicable. It was therefore not open to the court to proceed under Order XVII, rule 3, C.P.C. and to decide the suit on merits. It could either proceed to decide the suit under Order IX, of the C.P.C. ex parte or make some other appropriate order for its hearing. Since the order decreeing the plaintiff's suit could be passed only under the provisions of Order XVII, rule 2, and not under Order XVII, rule 3, it was open to the defendant to move the application for setting aside the ex parte decree under Order IX, rule 13, C.P.C. He was entitled to have the decree set aside if he could satisfy the court that there was sufficient cause for his not appearing before the court when the suit was called on for hearing. We are accordingly of opinion that the courts below erred in rejecting defendants application on the ground that the same was not maintainable. 30. In the view which we have taken, it is not necessary for us to consider the two other arguments raised by the plaintiff viz that even if the case was not covered by Order XVII, rule 2, the provisions of Order XVII, rule 3, also did not apply to the facts and circumstances of the case and that in any event the court had ample jurisdiction to set aside the decree under the provisions of Section 151 C.P.C. 31. In the result we allow this application in revision with costs and set aside the order of the learned Munsif dated 7-4-1968 refusing to set aside the ex parte decree as confirmed in appeal by the Civil Judge by his order dated 27th of April 1968. We direct the learned Munsif to consider the application filed by the defendant on 4th July 1966 for setting aside the ex parte decree under Order IX, rule 13, dated May 28, 1966 on merits.