V. ESWARAIAH, J. ( 1 ) THE appellant, who is defendant No. 1 in o. S. No. 114/1991 has filed this. Civil miscellaneous Appeal against the order of the learned Additional Subordinate Judge, ongole, dated 07-02-1994 in C. F. R. No. 8415/1993 in O. S. No. 114/1991 in dismissing the application of the appellant which was filed under Order 9 Rule 13 c. P. C. to set aside the ex parte decree dated 06-08-1993. ( 2 ) THE brief facts of the case are that the appellant is the 1st defendant in the suit. The said suit was posted to 15-06-1993 for his evidence. The plaintiff s evidence was closed on 24-02-1993 and the matter was adjourned for the evidence of defendants to 10-3-93, 23-3-93 and 12-04-93. Since the defendant did not adduce any evidence, the evidence of the defendant was closed and the matter was posted for arguments on 22-04-1993 and from 22-04-93 the suit was adjourned on payment of costs to 15-06-1993. Since the Officer was on Casual leave on 15-06-1993, it was adjourned to 29-06-1993. On 29-06-1993, the defendant neither paid the costs nor present himself nor appeared through his Counsel. Therefore, the matter is posted for arguments and the suit was decreed on 06-08-1993. The appellant filed petition under Order 9 Rule 13 C. P. C. to set aside the order dated 06-08-1993 contending that the judgment was made under Order 17 rule 2, and therefore, the application filed under Order 13 Rule 9 C. P. C. is maintainable. ( 3 ) THE learned Subordinate Judge, ongole, without going into the merits of the application whether any grounds are made out for considering the said application to set aside the order or not, but only considered the legal contention that the application under Order 9 Rule 13 is not maintainable as the defendant was not set ex parte and it was not an ex parte order and that the order was passed under Order 17 rule 3 C. P. C. as the Counsel was present. Even if the Counsel is present and the party is not present, the Court cannot proceed under Order 17 Rule 3 C. P. C.-but as per order 17 Rule 3 (a) the Court shall proceed under Rule 2 of Order 17 alone. Even if the Counsel is present and the party is not present, the Court cannot proceed under Order 17 Rule 3 C. P. C.-but as per order 17 Rule 3 (a) the Court shall proceed under Rule 2 of Order 17 alone. ( 4 ) THIS Court in the case of Thummala suryamma vs. The A. P. Electricity Board1 relying upon the Full Bench judgment of this Court in Agaiah vs. Mohd. Abdul Kareem2 held that mere physical presence on the part of the defendant or his Counsel does not make the decree as one under Order 17 rule 3 C. P. C. if as a matter of fact the defendant did not participate in the hearing of the case. Therefore, the lower Court is not right in coming to the conclusion that it was a decree passed under Order 17 Rule 3 c. P. C. It is a decree passed only under order 17 Rule 2 C. P. C. Therefore, the petition filed by the appellant under order 9 Rule 13, C. P. C. is maintainable. The learned Counsel for the appellant cited a decision of the Hon ble Supreme Court in prakash Chander Manchanda vs. Janaki manchanda3 held in similar circumstances that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined upto that date, the Court has no option but to proceed to dispose of the matter in accordance with order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of civil Procedure. In that view of the matter, it is clear, that in the present case when the case was called, the appellant-defendant no. 1 was not present and till the date of the order, no evidence was recorded on behalf of defendant No. 1 and the defendant was only to begin his evidence on that date or an earlier date when the case was adjourned. In this view of the matter, Order 17 Rule 2 is applicable and the appellant has rightly filed the application under Order 9 Rule 13 to set aside the order but the Court below on erroneous application of law and facts, dismissed the same as not maintainable. In this view of the matter, Order 17 Rule 2 is applicable and the appellant has rightly filed the application under Order 9 Rule 13 to set aside the order but the Court below on erroneous application of law and facts, dismissed the same as not maintainable. The case relied upon by the learned Judge in R. Suryanarayana vs. Chatena Traders4 is contrary to the law laid down in the decision of the Full Bench in Agaiah s case (supra) and the decision of the Supreme court in Prakash Chander Manchanda (supra ). ( 5 ) FOR the foregoing reasons, I set aside the order dated 07-02-1994 of the additional Subordinate Judge made in c. F. R. No. 8415/1993 in O. S. No. 114/1991 and hold that the application filed by the appellant under Order 9 Rule 13 C. P. C. is maintainable and the Additional subordinate Judge is directed to consider the application on merits giving reasonable opportunity to both the parties and decide the same in accordance with law. ( 6 ) ACCORDINGLY, the Civil Miscellaneous appeal is allowed. No Costs.