Judgment :- The petitioners filed O.S.No.5 of 2005 in the Court of the I Additional District Judge, Kadapa, against the respondents, for declaration of title and perpetual injunction, as regards the suit schedule property. The summons were served upon the respondents, and the suit was posted on 01-07-2005, for filing written-statements. On account of the failure of respondents 1 to 9, i.e. defendants 1 to 9 (respondents 10 to 12 are the legal representatives of the deceased – 2nd respondent), they were set ex parte. The 13th respondent, viz., defendant No.10, alone contested the matter. The Trial Court passed a decree on 27-02-2006. The respondents 1 to 12 herein filed I.A.No.437 of 2006, under Order 9 Rule 13 C.P.C., with a prayer to set aside the decree dated 27-02-2006. The 13th respondent, on the other hand, filed A.S.No.370 of 2006 before this Court. The petitioners filed counter, raising several objections to the I.A. They pleaded that the decree was passed on merits, and an application under order 9 Rule 13 CPC was not maintainable. It was also their contention that once A.S.No.370 of 2006, filed by the 13th respondent, was pending before this Court, it is impermissible for the trial Court to entertain the application. Through its order dated 19-09-2007, the trial Court allowed the I.A. It has set aside the decree dated 27-02-2006, vis-a-vis the respondents 1 to 12 and respondent No.13. Hence, this C.R.P. Sri. S.V. Bhat, learned counsel for the petitioners, submits that the circumstances that led to passing the decree against the respondents 1 to 13 attract Order 17 Rules 2 and 3, and that the application filed under Order 9 Rule 13 C.P.C., was not maintainable in law. The second objection raised by the learned counsel is that, once a decree, on merits, was passed against respondent No.13, and an appeal is pending before this Court, it was not at all open to the trial Court, to meddle with the decree. Lastly, learned counsel submits that respondents did not make out any case on merits, explaining lapses on their part. Sri. Lastly, learned counsel submits that respondents did not make out any case on merits, explaining lapses on their part. Sri. J. Srinivasa Rao, learned counsel, for respondents 1 to 12, and Sri V.R. Reddy Kovvuri, learned counsel for the 13th respondent, submit that an ex parte decree vis-à-vis respondents 1 to 12 came to be passed on account of the communication gap, inasmuch as their counsel in the trial Court underwent surgery at Bangalore at the relevant point of time. It is urged that order 17 would get attracted only when the defaulting party had, earlier adduced evidence, and that the question of invoking that provision, vis-à-vis defendants, who did not file the written-statement, does not arise. They contend that under proviso to Rule 13 of Order 9, the only impediment for a trial Court to set aside the decree against a defendant, who was not set ex parte, is where the appellate Court has decided the appeal on merits. Both the parties have relied upon certain decided cases, in support of their respective contentions. There were 10 defendants in the suit. All of them were served with notices, and they have entered appearance; and Vakalats were filed on their behalf. Written-statement on behalf of respondents 1 to 9 was not filed, within the stipulated time. The trial Court appears to have set them ex parte, and proceeded with the suit, without the participation of the petitioners. The suit was decreed through judgment dated 27-02-2006. The respondents 1 to 12 pleaded that they did not receive any information about the progress in the suit from the counsel, on account of his having been operated, in Bangalore, and that they came to know about the decree, passed in the suit, only when they received a caveat, filed by the petitioners in this Court. The petitioners opposed the application, by filing a counter, and have put the respondents 1 to 12, to strict proof of their allegations. It was contended that the application is not maintainable, and an appeal filed by the 13th respondent is pending. The trial Court held that the application is maintainable; that the decree against the respondent No.13 is inseparable; that the reasons, pleaded by the respondents 1 to 12, were satisfactory, and accordingly allowed the I.A. The first contention advanced on behalf of the petitioners is about the maintainability of the application. The trial Court held that the application is maintainable; that the decree against the respondent No.13 is inseparable; that the reasons, pleaded by the respondents 1 to 12, were satisfactory, and accordingly allowed the I.A. The first contention advanced on behalf of the petitioners is about the maintainability of the application. According to them, it is Order 17, and not Order 9, that is applicable to the facts of this case. It is a matter of common knowledge that, an application under Order 9 gets attracted, only when a suit is dismissed for default, or where the defendants are set ex parte, or an ex parte decree is passed. Order 17, on the other hand, deals with the adjournments in a suit. Rules 2 and 3 thereof, are relevant in this context. They read as under: “O.XVII Rule 2: Procedure if parties fail to appear on day fixed.- Where, on 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. Explanation.- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. [Explanation.- There mere presence in Court of a party or his counsel not duly instructed shall not be considered to be an appearance of the party within the meaning of this rule. (Amendment – specially for State of Andhra Pradesh)] Rule-3. Court may proceed notwithstanding either party fails to produce evidence, etc.-Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default.- a) If the parties are present, proceed to decide the suit forthwith, or b) if the parties are, or any of them is, absent, proceed under rule 2. (Amendment, in so far as it applies to Andhra Pradesh). (Amendment, in so far as it applies to Andhra Pradesh). “At the end of the rule add the following proviso. Provided that in a case where there is default under this rule as well as default of appearance under rule 2 the court will proceed under Rule 2.” The line of distinction between the instances, that fall under Order 9, on the one hand, and Order 17 Rules 2 and 3, on the other hand, is very thin. More often than not, an instance, which is genuinely covered by one provision, is dealt with under the other. Though both the provisions deal with the consequences that follow, an adjudication without the participation of one of the parties, substantial difference exists, as to the remedy, vis-à-vis such consequences. While under order 9, an application before the same Court would serve the purpose, the remedy in a case, that attracts Order 17, is to file an appeal before the superior Court. The broad line that separates the two categories of cases is that, while Order 9 is attracted on account of, an absence-simplicitor of a party, to participate in the suit, order 17 applies to cases of failure to comply with a specific step, identified by the Court. Rule 2 of order 17, as a matter of fact, makes a specific reference to Order 9, in the event of the default, or failure of any party to appear in the Court. The first explanation gives an option to the Court, to proceed with the case, as though the defaulting party were present, if such party has already adduced substantial portion of its evidence. The further explanation, which applies to the State of Andhra Pradesh, makes it very clear that, mere presence in the Court, of a party, or counsel, not duly instructed, Shall not be construed as appearance; thereby suggesting that, even where a party or his counsel is physically present, in a given case, the trial court, may choose to proceed under the first explanation. Rule 3 of order 17 mainly covers those instances, where the failure is, in the context of adducing evidence. Clause (a) there of operates, where the party is present in the Court but the default is as regards adducing evidence or compliance with any other step. In such cases, the Court is permitted to proceed to decide the suit. Rule 3 of order 17 mainly covers those instances, where the failure is, in the context of adducing evidence. Clause (a) there of operates, where the party is present in the Court but the default is as regards adducing evidence or compliance with any other step. In such cases, the Court is permitted to proceed to decide the suit. Clause (b) mandates that if the parties or any of them are absent, resort is to be had to Rule 2. The common factor, that cuts across both the Rules 2 and 3 is, that an occasion to invoke them would arise, only when the suit is at the stage of recording of evidence, or subsequent thereto. If substantial portion of evidence is recorded, Rule 2 gets attracted, and if there is a default on the part of the party, to adduce evidence, or further evidence, Rule 3 covers the situation. Axiomatically, the order 17 does not cover cases, which are at the stage, anterior to recording of evidence. Order 9, on the other hand, is not stage specific. The suit can be dismissed for default, at any stage, and, a defendant can equally be set ex-parte, at any stage. In Anjuman-E-Tahari v. Shah Nawaz Begum 1994 (1) An. W.R. 342, this Court referred to some of the decided cases, and held that the occasion to invoke Order 17 would arise, only when substantial evidence has been recorded on behalf of the party, which is absent, on a fixed date, to which, the suit was adjourned, for further steps. In Andari Govindaiah v Vemula Venkatamma (died) and others, 1995 (3) ALT 685 , this Court dealt with the circumstances under which, the power under Rule 13 of order 9 can be exercised, in the context of severability of the decree. It is not even urged by the petitioners that the suit, vis-a-vis the respondents 1 to 12 has reached the stage of recording of evidence, when they were set ex-parte. The default attributed to them was, as to the filing of the written statement. Admittedly, such a situation does not attract Order 17. Therefore, the contention advanced on behalf of the petitioners, in this regard, cannot be accepted. The default attributed to them was, as to the filing of the written statement. Admittedly, such a situation does not attract Order 17. Therefore, the contention advanced on behalf of the petitioners, in this regard, cannot be accepted. The second plea raised by the petitioners is, that once an appeal is preferred against the judgment and decree, by respondent no.13, it was not open to the trial Court to set aside the decree against it also. If a trial Court is satisfied that the default on the part of a defendant was not wanton or willful, it can set aside the ex parte decree against such defendant. The first proviso to Rule 13 gives the discretion to the Court, to set aside the decree against other defendants also, in case the decree is of such a nature, that it cannot be set aside against only some of the defendants. The explanation places restrictions on the powers of the trial Court, in the matter of setting aside the decree against the non-defaulting defendants. It is beneficial to extract Rule 13 of order 9. O.IX R.13: Setting aside decree ex parte against defendants. - In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. Explanation.- Where there has been an appeal against a decree passed ex parte under this Rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this Rule for setting aside the ex parte decree. From a reading of the explanation, it becomes clear that mere pendency of appeal, against an ex parte decree, preferred by some of the defendants, by itself, is not a ground to refuse to exercise powers under the first proviso. It is only when the appeal was disposed of, on merits, that the trial Court becomes denuded, of its power under the first proviso. Once it becomes clear that the decree is inseparable vis-a–vis the defendants, who filed application under Rule 13 of Order 9. On the one hand, and rest of the defendants, on the other, it cannot be said that the power under first proviso cannot be exercised, simply because an appeal is pending against such decree. In the instant case, the suit was for the relief of declaration of title, in respect of suit schedule property. The petitioners themselves felt that their cause of action was common against all the defendants. Therefore, the decree was not separable. Hence, this contention of the petitioners also cannot be accepted. Now, it needs to be seen, as to whether the grounds, pleaded by the respondents 1 to 12, for their failure to file a written statement, within the stipulated time, are satisfactory. Soon after they received notice in the suit, they entered appearance, and a Vakalat was filed, on their behalf. They were waiting for intimation and communication from their counsel, for further steps. It is pleaded that their counsel sustained a fracture injury to hip, and went to Bangalore for replacement and surgery. They specifically pleaded that they came to know about the dismissal of the suit, only when they received caveat from the petitioners. They were waiting for intimation and communication from their counsel, for further steps. It is pleaded that their counsel sustained a fracture injury to hip, and went to Bangalore for replacement and surgery. They specifically pleaded that they came to know about the dismissal of the suit, only when they received caveat from the petitioners. The petitioners did not deny the factum of the Advocate of the respondents 1 to 12, suffering an injury, or undergoing surgery at Bangalore. Their opposition was only on the ground that no medical certificate was filed. The respondents 1 to 12 have filed an affidavit of their counsel, by name, B. Dwarakanath Rao. The contents there of remained unrebutted. It is not as if that the suit was pending for years together. It was filed in the initial part of 2005, and an ex parte decree came to be passed on 27-02-2006. The record discloses that the Advocate of the respondents 1 to 12 was in the Hospital from 11-10-2005 to 24-10-2005. The discharge summery is also filed into the Court. The plea of the respondents 1 to 12, that when they went to their Advocate, the door was locked; is also not seriously denied. The Trial Court had undertaken extensive discussion on this aspect, and had set aside the ex parte decree, in its entirety, on finding that the grounds urged by respondents 1 to 12 are satisfactory, and that the decree is inseparable. This Court is not inclined to interfere with the same. Therefore, the C.R.P. is dismissed. There shall be no order as to costs.