Judgment : Chakravorti, J. : This a landlord's appeal against an order dated September 13, 1979, passed in Misc. Case No. 1175/79 arising out of Ejectment Suit no. 1568/72 of the City Civil Court at Calcutta. 2. The basic facts leading to the impugned order are not very much in dispute. The plaintiff-appellant instituted the aforesaid ejectment suit against the defendant-respondent for eviction and obtained an exparte decree on November 5, 1973. Thereafter, the plaintiff by execution of the decree recovered possession of the suit premises by breaking open the lock. The articles belonging to the defendant-respondent were kept in the custody of the plaintiff-appellant. The defendant, however, filed an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree which was registered al Misc. Case no. 239/74. This miscellaneous case was disposed of by an order dated July 19, 1975. By consent of the parties and on payment of costs the Miscellaneous Case was allowed and the suit was restored to its original file and number after setting aside the exparte decree dated November 5, 1973. Thereafter, the defendant-tenant filed an application under section 144 of the Code for restitution of possession. This application was registered as Misc. Case No. 550/77. The plaintiff-appellant also filed an application under section 151 of the Code for setting aside the consent order allowing the Miscellaneous Case under Order 9, Rule 13 of the Code. Both these matters came to be heard on May 27, 1978. It appears from the order of that date that neither party pressed their respective petitions and filed a joint application in that behalf. On the basis of the joint application the Miscellaneous Case as also the Petition under section 151 of the Code were dismissed for non-prosecution. The joint petition indicates that the parties agreed that the suit be posted for final hearing at an early date. Thereafter, another application under section 144 of the Code was filed by the defendant-respondent alleging that the plaintiff was not at all interested in early hearing and disposal of the suit but continued to adopt dilatory methods by making belated prayed for local inspection. Thereafter, another application under section 144 of the Code was filed by the defendant-respondent alleging that the plaintiff was not at all interested in early hearing and disposal of the suit but continued to adopt dilatory methods by making belated prayed for local inspection. amendment of the plaint and taking matters to the High Court on flimsy grounds and so on while the defendant being kept out of possession, was obliged to continue to deposit the rent for the premises in order to avoid it proceeding under section 17(3) of the West Bengal Premises Tenancy Act. 3. The learned Judge accepted the tenant-defendant's version and ho found as a fact that the conduct of the plaintiff was not bona fide and that she was purposefully delaying and protracting the litigation. A plea was taken on behalf of the plaintiff-appellant that the second application under Section 144 of the Code was barred by res-judicata. The learned Judge rejected the plea and allowed the application of the tenant directing restitution as prayed for. Being aggrieved, the plaintiff-landlord bas preferred the present appeal. 4. Mr. Chatterjee appearing in support of the appeal contended that Section 144 of the Code is not really attracted to this case in so far as the order setting aside the exparto decree was not an order made on consent and after hearing the parties. His contention is that, since that was not an order made on consent, there was really no variation or the decree and the decree could not be said to have been vacated by an order of the court. We are, however, unable to accept the contention of Mr. Chatterjee in this regard. The order allowing the application under Order 9 Rule 13 of the Code clearly states that the suit was restored to its original file and number and that the exparle order was set aside. There is nothing in Section 144 of the Code which lays that in order to invoke the laid section it is necessary that the order must be passed on merits and on contest. What is important to see is whether the order, namely, the exparte decree in this cue, was set aside or not. There can be no dispute that the decree was let aside and the suit was restored to file. 5. Mr. What is important to see is whether the order, namely, the exparte decree in this cue, was set aside or not. There can be no dispute that the decree was let aside and the suit was restored to file. 5. Mr. Chatterjee next wanted to argue that the application under Order 9 Rule 13 of the Code was primarily based on a plea that summons had not been served. He wanted us to go through the order-sheet to show that the summons had really been served. We think the matter is no longer open to the plaintiff-appellant to contend that there was no merit in the application under Order 9 Rule 13 C. P. Code. The matter is concluded by the order passed in the Miscellaneous Case under Order 9 Rule 13 of the Code. 6. Having perused the relevant records and having heard the learned Advocate for the appellant, we are satisfied that the plaintiff after having obtained a consent to the earlier application under Section 144 of the Code being not pressed on the clear understanding that the suit would be posted for hearing at an early date, started taking dilatory methods in order to delay the proceeding. In this state of things the learned Judie in the trial court was justified in holding that the tenant-defendant was entitled to renew the prayer for restitution by filing a second application under Section 144 of the Code. The circumstances entitled her to an order in her favour. In that view of the matter, we find nothing to interfere with the order impugned. The appeal accordingly fails and is dismissed. The Rule is also discharged. There will be no order for costs either in the appeal or in the rule. Preparation of a formal decree in the appeal is dispensed with. Let the order be communicated to the court below forthwith. Sen, J. : I agree.