MANJULA CHELLUR, J. ( 1 ) 1. This Misceilaneous First Appeal is filed by the 1st respondent before the Tribunal in M. V. C. No. 980/94. The facts that lead to the filing of the appeal are as under: ( 2 ) M. V. C. No. 980/94 was filed by the L. Rs, of deceased - Jayarajclaiming compensation against the owner of the private bus bearing no. MEG 8010 and the Insurance Company. The date of accident is 4. 5. 1994. Admittedly, the claim petition came to be filed before the tribunal at Mangalore. Both respondents -1 and 2 were represented before the Mangalore Court. Subsequently, by order dated 22. 8. 1995 the matter was transferred to the Additional M. A. C. T. Udupi. Both the respondents were absent. Subsequently, except the second respondent the 1st respondent-owner did not file the written statement. Therefore, issues were framed on the basis of the written statement of the Insurer i. e. , respondent No. 2 before the Tribunal. Advocates represented both the petitioners and also the second respondent. The matter was disposed of by Judgment and award dated 20. 2. 1998. As the vehicle was not insured with the second respondent-Insurer though the petition was allowed, the liabiiity was fastened against the owner who did not participate in the proceedings except making his appearance by filing vakalath. Aggrieved by the said order, the present appeal is filed. ( 3 ) THE learned Counsel for the appellant contends that he waskept totally in dark about the proceedings before the M. A. C. T. Udupi as neither the Court at Udupi sent him a fresh notice nor his advocate intimated him about the transfer of the case and its dismissal. He further contended that under Section 173 of the Motor Vehicles Act, he could challenge the Judgment and Award by filing an appeal under Section 173 of the MVC Act. According to the appellant, if he had an opportunity to place before the Tribunal all the materials available, the award would not have been passed by the Tribunal. He also questions the quantum of compensation in this appeal. So far as the second respondent is concerned, he has nothing to say except reiterating his defence that the vehicle in question was not insured with them. He also questions the quantum of compensation in this appeal. So far as the second respondent is concerned, he has nothing to say except reiterating his defence that the vehicle in question was not insured with them. So far as the 1st respondent is concerned according to him, the very appeal is not maintainable as far as this appeal is concerned as the Judgment and award passed by the tribunal would fall under Order 17 Rule 2 CPC and therefore he ought to have taken recourse under Order 9 Rule 13 CPC. ( 4 ) IN reply the learned Counsel for the appellant submits thatsection 173 of the Motor Vehicles Act provides for appeal against any order irrespective whether it is an order under Order 17 Rule 2 or Order 17 Rule 3 CPC. It is further contended, in the absence of any specific provision providing for filing appeal the Court has to look for assistance from the procedure in CPC. He relies on three decisions i. e. , (1) A. K. P. HARIDAS vs MADHAVI AMMA and OTHERS (2) MOKTESARS OF GANAPATHI TEMPLE vs ARCHAKS (3) K. S. R. T. C. vs SRI KALWA PRAKASH and ANOTHER. ( 5 ) THE point that would arise for Court's consideration is whetherthe appeal is maintainable? What order? ( 6 ) ADMITTEDLY, subsequent to the transfer of the matter to theadditional M. A. C. T. Udupi, so far as the appellant herein, he never took part in the proceedings. But on the objection statement filed by the Insurer issues were framed. It is noticed from the order sheet in the M. V. C. that new counsels were engaged both for the claimant and also for the Insurance Company. ( 7 ) THE learned Counsel Sri B. N. Govinda Bhat who wasappearing for the appellant at Mangalore did not participate on behalf of the appellant at Additional M. A. C. T. Udupi. Therefore, the judgrnent and Award came to be passed against the appellant herein holding, he is liable to pay Rupees one lakh and odd as compensation without participation in the proceedings. So far as this appellant is concerned, the Judgment and award was not on merit, but on the objection raised by the second respondent-insurer. No doubt, such an order so far as against the appellant is concerned do fail under Order 17 Rule 2 (PC. So far as this appellant is concerned, the Judgment and award was not on merit, but on the objection raised by the second respondent-insurer. No doubt, such an order so far as against the appellant is concerned do fail under Order 17 Rule 2 (PC. But the Court has to see "whether the appellant herein could take assistance of Section 173 of the motor Vehicles Act to challenge the impugned Judgment and award. Section 173 of the Motor Vehicles Act reads as under:"173 (1) Subject to the provisions of Sub-section (2) any person aggreved by an award of a Claims Tribunal may, within ninety days iron the date of the award, prefer an appeal to the High court provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by 'he High Court unless he has deposited with it twenty five thousand rupees or fifty percent, of the amount so awarded, whichever is less, in the manner directed by the High Court; provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. " ( 8 ) A reading of this Section makes it clear, the appeal is providedunder this Section against the award passed by the Tribunal. AIR 1988 Kerala 304 discussed about the test to be applied in order to know whether the decree is ex parte or on merits. Paras-4, 5 and 6 read as under:"4. The first contention was that the decree is an appealable one and hence an application under Order 9 Rule 13 will not lie. That is rot a sound proposition of law. These are not remedies, which are inconsistent or mutually exclusive. The mere fact that there is right of appeal against the ex parte decree is no reason to hold that an application under Order 9 Rule 13 is not maintainable. Order 8 Rule 10 as it stood before the amendment of 1976 did not contain a provision that on pronouncement of the Judgment a decree shall be drawn up. The mere fact that there is right of appeal against the ex parte decree is no reason to hold that an application under Order 9 Rule 13 is not maintainable. Order 8 Rule 10 as it stood before the amendment of 1976 did not contain a provision that on pronouncement of the Judgment a decree shall be drawn up. The adjudication was therefore taken out of the definition of decree in Section 2 (2) of the Code and it was made appealable as an order under Order 43 Rule 1 (b ). After the amendment of 1976 when the provision for drawing up a decree was inserted in Order 8 Rule 10 Order 43 Ru!e1 (b) was deleted and the decree under Order 8 Rule 10 became no longer appealable as an order under Order 43 Rule1 (b ). It became an appealable decree as held in C. D. Itoop vs Trichur Municipality 1934 Ker. L. J. 280. The contention is that for this reason it ceased to be one against which an application under Order 9 Rule 13 is maintainable. That contention is on the basis of a misapprehension that remedy under Order 9 Rule 13 and that by way of appeal are mutually exclusive. In fact they are not. There is no bar in resorting to both the remedies simultaneously or any of them alone. Only thing is that when both remedies are attempted and one succeeds the other becomes infructuous since the object and effect of both is the same. Availability of the remedy by way of appeal is no bar to an application under Order 9 Rufe 13 if such a remedy is also available to the party. For example when the defendant is set ex parts under Order 9 Rule 6 and an ex parte decree passed, though that decree is appealable an application under Order 9 Rule 13 also will lie. The real question for consideration is only whether an application under Order 9 rule 13 will lie. 5. The opening words of Order 9 Rule 13 are "in any case in which a decree is passed exparte against a defendant. " Therefore the real question for the applicability of the rule is whether the decree is ex parte or one on the merits whatever be the provision under which it was resorted to. 5. The opening words of Order 9 Rule 13 are "in any case in which a decree is passed exparte against a defendant. " Therefore the real question for the applicability of the rule is whether the decree is ex parte or one on the merits whatever be the provision under which it was resorted to. If it is ex parte the remedy under order 9 Rule 13 is there irrespective of the simultaneous or alternate remedy by way of appeal. Whether the decree is ex parte or one on the merits is a question of fact depending upon the facts of each case. A decree, which is for all external appearance one on the merits may in fact only be an ex parte one. As held in Chari Vijayan vs Achuthan Vasu 1973 Ker L. T. 849 the Courts owe a duty to weigh the merits of the case and consider whether there is a case for granting a decree even when there is no contest by non-appearance of the defendants. Attention to pleadings and evidence even in cases where the defendants do not appear is not only a healthy trend but also a duty cast on the Court to decide whether the plaintiff has a good. case to be decreed. Even in cases where the defendant remains ex parte decreeing the suit merely on that ground without looking into the pleadings and evidence may not be conducive to justice. Whether the claim is contested or not is not the real question. The question is whether the plaintiff presented a case entitling him to get a decree. For that purpose even in cases where the defendants remain ex parte the Court should insist atleast on formal proof from the plaintiff as held in Kochuelue vs Varkey 1968 Ker LT 462 and the Judge is bound to look into pleadings and evidence. 6. Even in contested cases there could be ex parte decrees as provided in Order 17 Rule 2 and 3 (b) on account of absence of parties and there could also be a decree on the merits as provided in Order 17 Rule 3 (a ). The decision on the merits in such cases in a matter of discretion of the Court as laid down in Pokker Haji vs Muhammad Barami 1971 Ker LT 438. The decision on the merits in such cases in a matter of discretion of the Court as laid down in Pokker Haji vs Muhammad Barami 1971 Ker LT 438. Whether in decreeing the suit the Judge was conscious of that discretion to proceed either under Rule 2 or Rule 3 and decided to proceed under rule 3 to decree the case on the merits is a matter to be seen from the Judgment and other circumstances. In such cases also if the disposal is under Rule 2 a petition filed under Order 9 Rule 13 is well nigh maintainable inspite of the fact that an appeal also will lie. In such cases even though the disposal in form purports to be one on merits, if it is found to be in substance one for default a petition under Order 9 Rule 13 is maintainable as held in Varghese vs Kesavan 1960 Ker LT 648, granting of such an application is proper and legal in such circumstances and for that purpose what the Court has to look into is not the form of the judgment but its substance. In such cases bar for an application under Section 9 Rule 13 is only if the decree is one on the merits under Order 17 Rule 3 in which case the remedy is only by way of appeal. As held in Moideenkutty vs Gopalan 1980 Ker LT 468 an application under Order 9 Rule 13 is not barred in such cases simply because disposal purports to be on the merits but actually is one for default. A disposal under Order 17 Rule 3 (b) is disposal under Order 17 Ruie 2. If the court did not consider the contentions on the pleadings or the issues raised or the evidence adduced the disposal is not on the merits and peelikunju vs Sreedharan (1985 Ker LT (SN) No. 87 page 55 (1)) is also authority for the position that in such cases a petition under Order 9 Rule 13 will lie. In all these cases the remedy by way of appeal is also there. The learned Counsel for the revision petitioner misunderstood the legal position and thought that availability of the right of appeal will operate as a bar to an application under Order 9 Rule 13. That is a fundamental mistake". ( 9 ) IN ILR 1989 Kar. In all these cases the remedy by way of appeal is also there. The learned Counsel for the revision petitioner misunderstood the legal position and thought that availability of the right of appeal will operate as a bar to an application under Order 9 Rule 13. That is a fundamental mistake". ( 9 ) IN ILR 1989 Kar. 3380 at Paras 5, 8 and 9 this Court has laiddown what is the procedure for disposal of a matter under Order 17 rule 2 or Order 17 Rule 3 and how the procedure confers discretion to proceed under Rule 3 under what circumstances. ( 10 ) THE other decision 1999 (3) T. A. C. 520 rightly applies to thefacts of the present case. It was an appeal against the rejection of application for restoration of claim petition and for setting aside the order of dismissal of claim petition for default. It is held as under: 5a. No doubt, Order XLIII may apply and provide for appeal in matters or orders passed under Order IX Rule 13 read with order XVII Rule 2 of CPC. But, as the Tribunal by itself is not a civil Court. Order XLIII will not apply by its own force. The powers of Civil Court for other purpose may also be provided under the rules Rules 253 and 254 of the Rules framed under the Motor vehicles Act, 1988 further provide that what powers under what provisions may be exercised by the Tribunal which powers are vested in the Civil Court under the CPC. Rule 253 refers to various sections including Section 151 of the Code. It also provide that the Tribunal shall have power of the Civil Court for the purpose of execution of award. Rule 254 further provides that in relation to the proceedings before the Claims Tribunal, the specific provision in clauses (a) and (b) of Rule 254 will apply. In clause (b) of Rule 254, no doubt Order IX and Order XVII are mentioned. But, there is no mention of powers of the Civil Court under Order xliii of the CPC. This clearly indicates that no doubt from an order passed by the Claims Tribunal either dismissing the Claim petition for non-prosecution or decreeing or giving the award ex parte. But, there is no mention of powers of the Civil Court under Order xliii of the CPC. This clearly indicates that no doubt from an order passed by the Claims Tribunal either dismissing the Claim petition for non-prosecution or decreeing or giving the award ex parte. apart from the remedy of appeal from the award itself the remedy of moving an application for restoration or for setting aside ex parte decree, no doubt, is available as Order IX, and order XVI! have been made applicable in relation to matters of the Tribunal. But, the provisions of Order XLIII have not been made applicable. "7. The appeal is a right conferred on the party from proceeding under Act and unless special Act does so provided person cannot claim remedy of appeal as of right. The provision for appeal is only contained in Section 173 of the Motor Vehicles Act. When section 173 provides appeal only against the award and not against the order in the nature of orders passed under Order IX or Order XVII, it means intention of the Legislature was not to provide specific relief. If the order XLIII would have been mentioned in Rule 254, might it be said that remedy is there. But. Act does provide remedy of appeal only against the award. That to avoid any further delay, it appears intention of the legislature is not to provide appeals from the order dismissing the claim for non-prosecution or from the ex parte awards given. No doubt, two remedies were available under Order of dismissal of the claim. As the appeal is not maintainable under Order IX rule 9 read with Order XVII Rule 2 and remedy remained open to the claimant against the dismissal of the claim for non- prosecution i. e. , award in the nature of order dismissing the claim under Section 173, the appellant could have filed the appeal against that order dismissing claim. Any way, for the present, in my opinion, the appeal from Order IX, Rule 9 read with Order xvii is not maintainable as the provisions of Order XLIII CPC have not been incorporated and the powers under that order so have not been made available to any person as such the remedy of appeal to the person aggrieved from such order te. , order of an application under Order IX CPC is not available by virtue of order XLIII CPC. 8. In this view of the matter, in my opinion, the appeal is not maintainable and it is dismissed with liberty to the appellant to file an appeal against the original award dismissing the claim petition for non-prosecution explaining, the cause for delay in the light of Section 14 of the Limitation Act and also quite sure that if appeal is filed within a period of six weeks from the date of this order or receipt of the copy of this order whichever is later then when matters come up in appeal for adjudication of delay, the matter may be considered sympathetically. " ( 11 ) BY reading of the above paragraphs it is very clear that sofar as an order under Order 17 Rule 2 in Motor Vehicles case, any one aggrieved by an order in a case where it is dismissed for default or an ex parte order, the remedy open to them is two folded. They could choose forum under Order 9 Rule 7 or 13 as the case may be or file an appeal under Section 173 of the Motor Vehicles Act. When once the Court comes to the conclusion that the impugned order, so far as the appellant is concerned, falls under Order 17 rule 2 CPC, at his option he could choose the forum as mentioned above. Just because he files an appeal under Section 173 it cannot be said that the appeal is not maintainable. Therefore in view of the wording used under Section 173, the present appeal is maintainable. ( 12 ) SO far as the merits of the case is concerned, admittedly thepresent appellant did not have an opportunity at all to contest the matter on all the issues that were fixing the liability against him. It is an ex parte Judgment so far as he is concerned, It is admitted by the appellant that the insurance taken by him covering the vehicle in question though originally with the second respondent-Insurance company was in force, but as on the date of accident, the insurance was not in force. In that view of the matter, the second respondent - Insurance Company need not participate in the proceedings, as indemnifying the insured will not arise. In that view of the matter, the second respondent - Insurance Company need not participate in the proceedings, as indemnifying the insured will not arise. The opinion of the Tribunal that the second respondent was not liable to indemnify the insured holds good. ( 13 ) IN that view of the matter, in the interest of justice theappellant must be given an opportunity to contest the matter and therefore, the matter deserves to be remanded back to the Tribunal for fresh disposal on all the issues after giving opportunity to all the parties concerned. ( 14 ) ACCORDINGLY, the appeal is allowed remanding the matter tothe concerned Tribunal for fresh disposal in accordance with law. The Tribunal concerned is directed to dispose of the matter Within three months from the date of receipt of this order. The appellant and the respondents-claimants shall appear before the Tribunal on 20. 8. 2001. --- *** --- .