JUDGMENT - JAMDAR M.S., J.: - The short question that arises for consideration in this revision application is whether the decree passed by the civil Judge, Senior Division, Bhandara on 15-11-1972 was an ex-parte decree within the meaning of Order 9, Rule 6 of the Code of Civil Procedure, 1908. 2. The non-applicant filed the said suit against the revision applicant for possession of the suit land. The suit was stayed on a, reference made to the Tenancy Court and after the issue referred to the Tenancy Court was finally decided by this Court, the suit was taken on file on 15-6-72 and was fixed for evidence on 3-7-1972. On that date, on an application made by the non-applicant(original plaintiff), the suit was adjourned to 10-7-1972 for evidence of parties. On 10-7-1972 the revision applicant remained absent. The non-applicant examined himself and closed his case on that date. The judgment, however, was passed on 15-11-1972 after several adjournments for that purpose. Thereafter on 7-12-1972 the revision applicant filed Regular Miscellaneous Judicial Case No. 54 of 1972 under Order 9, Rule 13 of the Civil Procedure Code for setting aside the decree on the ground that it was passed ex parte because of his inability to attend the Court on account of illness. The Trial Judge disbelieved the evidence led by the revision applicant to show that illness prevented him from attending the Court on the date on which the suit was fixed for hearing. Consequently he dismissed the petition with costs. Being aggrieved, the revision applicant filed Misc. Civil Appeal No. 14 of 1974 in the District Court, Bhandara. The Assistant Judge, Bhandara, who heard the appeal observed that the decree was passed on merits under Order 17, Rule 2 and hence was not an ex parte decree. He, therefore, held that the only remedy the revision applicant had was to prefer an appeal against the decree and the application filed by him under Order 9, Rule 13 was not maintainable. In view of the discrepancies pointed out by the learned Trial Judge in the oral evidence led by the revision applicant, the learned Assistant Judge did not see any reason to differ from the appreciation of evidence made by the Trial Judge. The Assistant Judge, there-fore, confirmed the order and dismissed the appeal with costs. 3. In view of the discrepancies pointed out by the learned Trial Judge in the oral evidence led by the revision applicant, the learned Assistant Judge did not see any reason to differ from the appreciation of evidence made by the Trial Judge. The Assistant Judge, there-fore, confirmed the order and dismissed the appeal with costs. 3. It is an admitted position that no evidence was recorded on 3-7-1972, the date on which the suit was first fixed for hearing after the tenancy reference was finally decided by this Court. As mentioned above, on 3-7-1972 the non-applicant applied for an adjournment and the suit was fixed for recording evidence on 10-7-1972. On that date the revision applicant remained absent and the learned Trial Judge without passing any formal ex parte order, proceeded to record the evidence led by the non-applicant and passed the decree solely on the basis of the evidence recorded after revision applicants default in appearance. The lower appellate Court, therefore, was wrong in holding that the decree was one under the second part of Rule 2 of Order 17, which as it stood before the amendment, read as follows:- “Where, as 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.” The scope of this Rule was considered by Their Lordships of the Supreme Court in the case(Sangram Singh v. Election Tribunal, Kotah and another)1, A.I.R. 1955 S.C. 425. The relevant portion of the Head Note o, which relates to the scope of Order 17, Rule 2 reads as follows :- “If the defendant does not appear at the adjourned hearing(irrespective of whether or not he appeared at the first hearing) Order 17, Rule 2 applies and the Court is given the widest possible discretion either dispose of the suit in one of the modes directed in that behalf by O. P. or make such other order as it thinks fit.” The clause “make such other order as it thinks fit” contemplates that the Court may adjourn the matter to a further date or decide the suit on the basis of the evidence already recorded. If no evidence is recorded before the defendants default in appearance and if the entire evidence on which the decree is based is recorded after defendants default, the decree passed on the basis of such evidence cannot be said to have been passed in exercise of the discretion conferred on the Court by the clause “or make such order as it thinks fit”. If the entire evidence, on which the decree is based, is recorded after defendants default, the decree would be an exparte decree even though no formal order is passed by the Court directing that the suit should be proceeded ex parte against the defendant. In this view, I am fortified by the Full Bench decision of this Court in the case(Basalingappa Kushappa Kumbhar and others v. Shindraappa Irappa Shivangi and another)2, A.I.R. 1943 Bom. 321(FB). It was held in that case that if no evidence is recorded before default of appearance, the Court cannot decide the case on merits and if the evidence is led alter the default, all further proceedings would be clearly ex parte against the party making the default. The relevant observations which appear on page 324 read as follows :- “The next argument is that it is not obligatory upon the Court to pass a decree for default in case of non-appearance under Order 17, Rule 2, but that the Court has the discretion to “make such other order as it thinks fit”. It is true that that provision might enable the Court to pass any order, i. e. either to grant further adjournment or dispose of the suit on such conditions as it might think proper. It does not, how-ever, empower the Court to decide a suit on the merits if no evidence had been recorded before the default of appearance had taken place. If evidence is led after the default, all further proceedings would be clearly ex parte against the party making the default. In the present case no evidence had been led before the default took place, and the whole evidence on which the trial Court passed the decree was led after the default. If evidence is led after the default, all further proceedings would be clearly ex parte against the party making the default. In the present case no evidence had been led before the default took place, and the whole evidence on which the trial Court passed the decree was led after the default. It is, therefore, an ex parte decree, and no question arises about the Court having sufficient material to pass a decree on merits before the default took place.” The application filed by the revision applicant under Order 9, rule 13 was, therefore, clearly competent and the learned Assistant Judge was wrong in taking the view that the application was not competent. But this finding has no more than academic significance in this case because the revision applicant has miserably failed in proving that illness prevented him from attending the Court on 10-7-1972 when the suit was posted for hearing. Both the Courts below have disbelieved the evidence led by the revision applicant and there is absolutely no reason for this Court to interfere the finding of facts given by both the Courts below. It is also significant to note in this context that the issue about revision applicants tenancy was finally decided against the revision applicant. The finding on that issue went to the root of the matter and hence the revision applicant was not interested in defending the suit. It is, therefore, clear that the application was filed merely to forestall the execution of the decree. The revision application, therefore, fails and is dismissed with costs. Revision application dismissed. ------