ORDER.-This Civil Revision Petition is against the order of the learned Principal Subordinate Judge, Pondicherry,dismissing the petition under Order 9, rule 13, Civil Procedure Code,filed by the defendant in the suit to set aside a decree passed on 24th January, 1975, which according to the revision petitioner, the defendant, is only on ex parte decree. 2. S.C. No. 115 of 1974 on the file of the Court,Pondicherry was instituted by the respondents herein for recovery of a sum. of Rs. 540 due as arrears of rent. The suit was contested by the defendant. Subsequently,at the stage of the trial, the defendant was absent and the counsel for the defendant was also absent on 24th January, 1975. Instead of setting the defendant ex parte and passing an ex parte decree, the learned Principal Subordinate Judge of Pondicherry purported to decree the suit as prayed for under Order 17, rule 3, Civil Procedure Code, after P.W. 1 was. examined and Exhibit A-1 was marked. He did not even hold that the claim had been proved. Subsequently the petition for setting aside the ex parte decree was, filed before the same learned Subordinate Judge. He refused to set aside the ex parte decree because he took, the view that the suit has been decreed under Order 17, rule 3, Civil Procedure Code, and that therefore the petition under Order 9, rule 12, Civil Procedure Code, is not. maintainable. 3. This view of the learned Subordinate Judge cannot be sustained. Order 17, rule 3, Civil Procedure Code, applies only to cases where the parties are present. Where on the date of the trial the defendant is absent the Court cannot proceed under Order 17, rule 3, but should proceed under Order 17, rule 2, Civil Procedure Code, by setting the defendant ex parte and decreeing the suit after recording the evidence if the claim of the plaintiff is proved. The decree passed by the learned Subordinate Judge is in factian ex parte decree even though he has purported to pass a decree under Order 17, rule 3, Civil Procedure Code. 4. A similar view has been taken by Bell, J., in Venkataratnam v. Apparao1 Even though it was a case where the Court proceeded under Order 17, rule 3, Civil Procedure Code, and dismissed the suit. On merits the ratio of that decision will apply to the facts of the instant case. 5. 4. A similar view has been taken by Bell, J., in Venkataratnam v. Apparao1 Even though it was a case where the Court proceeded under Order 17, rule 3, Civil Procedure Code, and dismissed the suit. On merits the ratio of that decision will apply to the facts of the instant case. 5. In K. Somasundaram v. Seshagirrao2, Wadsworth, J., speaking for the Bench has observed:- “Here the plaintiff was physically absent during the later portions of the arguments of defendant 1’s lawyer and at the time when the case was closed We may take it that the learned Subordinate Judge should in such circumstances have passed an order dismissing the suit for default, and that when he did not do so, but purported to pass a decree based on a finding on the merits against the plaintiff, the plaintiff will not on the reasoning of the Full Bench in Pichamma v. Sreeramulu3, be deprived of the remedy of applying under Order 9, rule 9, for the restoration of the suit on the ground that it has really been dismissed for default.” Therefore, the Civil Revision Petition is allowed, the order of the lower Court dismissing I.A. No. 375 of 1975 is set aside and the matter is remanded to the lower Court for fresh enquiry and disposal of the application treating it as an application under Order 9, rule 13, Civil Procedure Code, and treating the decree as an ex parte decree. I may add that the question whether there was sufficient cause for the non-appearance of the defendant should be gone into by the trial Court without reference to any of the observations made by this Court. There will be no order as to costs.