Judgment ( 1. ) BEING aggrieved by the judgment and decree dated 17-2-99 passed by I adj, Ratlam in M. A. No. 51/97 whereby the order dated 28-4-91 passed by Civil judge Class I, Ratlam in MJC No. 4/95 was confirmed and application filed by the petitioners under Order IX Rule 13, CPC was dismissed, the present petition has been filed. ( 2. ) SHORT facts of the case are that respondent filed a suit against the petitioners for realization of a sum of Rs. 14,466. 98 paisa on 24-7-84. This suit was registered as Civil Suit No. 18-B/84 and was decreed in ex parte on 17-2-86. Against the ex parte decree, an application was filed by the petitioners under order IX Rule 13, CPC. Ultimately the application was allowed and ex parte decree dated 17-2-86 was set aside. After setting aside the ex parte decree, the case was fixed for appearance of the parties on 28-11-94. On this date, after appearance of the parties, the case was adjourned for filing the written statement on 5-12-94. On this date, respondents prayed time to file the document. Ultimately documents were supplied on 17-1-95 and the case was adjourned for filing of written statement on 23-1-95. On this date, an application was filed on behalf of the petitioners praying for adjournment for a week to file the written statement. This application was disposed of by giving one day time instead of seven days to file the written statement and the case was listed of seven days to file the written statement and the case was listed on 24-1-95. On this date, the written statement was not filed, hence the Court proceeded under Order viii Rule 10, CPC and passed the decree against the petitioners for a sum of rs. 14,466. 98 paisa along with interest. Being aggrieved by the judgment and decree passed by the learned Trial Court, an application was filed by the petitioner under Order IX Rule 13, CPC for setting aside the ex parte decree. This application was registered as MJC No. 4/95 and was contested by the respondent. After holding the summary enquiry, learned Trial Court dismissed the application against which M. A. was filed, which was also dismissed, hence the revision petition. ( 3. This application was registered as MJC No. 4/95 and was contested by the respondent. After holding the summary enquiry, learned Trial Court dismissed the application against which M. A. was filed, which was also dismissed, hence the revision petition. ( 3. ) LEARNED Counsel for petitioners submits that decree passed under order VIII Rule 10, CPC amounts to ex parte decree and application filed under order IX Rule 13, CPC is maintainable. It is submitted that learned Court below committed material irregularity in rejecting the application. Reliance was placed on a decision of Madras High Court in the matter of N. Jayaraman Vs. Glaxo Laboratories India Ltd. , AIR 1981 Madras 258, wherein it was held that- "order 9 Rule 13 is not confined to case where an ex parte decree is passed after observing the procedure under Order 9 Rule 6. A decree passed under Order 8 Rule 10 for defendants default in filing the written statement without any written judgment on merits is an ex parte decree covered by Order 9 Rule 13 and an application to set it aside under Order 9 Rule 13 is maintainable. " ( 4. ) FURTHER reliance was placed on a decision of Orissa High Court in the matter of Narendra Patra Vs. Shiba Narayan Taldi and another, AIR 1995 orissa 45, wherein it was held that- "sub-rule (2) of Rule 5 of Order 8, CPC does not contemplate decreeing of a suit, but it contemplates pronouncement of judgment on the basis of facts contained in the plaint. A decree is drawn up in such a case after pronouncement of judgment, under rule 10 of Order 8. A decree passed under the Rule for defendants default in filing a written statement is nonetheless an exparte decree coming within the purview of Order 9 Rule 13 and thereafter an application to set aside such a decree under Rule 13 of Order 9 is maintainable. " ( 5. ) IN the matter of Gujrat Co-operative Oil Seeds Growers Federation, air 1994 Delhi 367, it was held that- "it is not necessary for the appellant to file an appeal against the decree. Once the application under Order 9 Rule 13 is maintainable, it is upto the appellant to apply for setting aside the application under Order VIII Rule 10, CPC". ( 6. ) MR. Once the application under Order 9 Rule 13 is maintainable, it is upto the appellant to apply for setting aside the application under Order VIII Rule 10, CPC". ( 6. ) MR. V. K. Zelawat, learned Counsel for respondent submits that both the Courts have rightly held that application under Order IX Rule 13 is not maintainable. It is submitted that no jurisdiction error has been committed by the learned Courts below, hence revision petition itself is not maintainable. ( 7. ) IT is further submitted that since the judgment and decree passed by the Courts below is in presence of the petitioner, therefore, by no amount of imagination, it can be said that it was an ex parte decree. It is submitted that in fact the Court proceeded under Order 17 Rule 2, CPC. For this contention, reliance is placed on a decision in the matter of Nand Gopal Vs. Bank of India, AIR 1982 delhi 280, wherein it was held that- "in case of judgment passed under Order viii Rule 10, CPC appeal lies, and revision is not maintainable". ( 8. ) FURTHER reliance was placed in the matter of Jhabarmal Panda Vs. Bhagawati Prasad Kedia, AIR 1990 Gauhati 35, wherein it was held that- "in case of ex parte decree under Order VIII Rule 10, CPC, appeal is maintainable under Section 96, CPC and no appeal lies under Order 43 Rule 1, CPC. ( 9. ) BOTH these decisions do not help as they are far away from the controversy involved in the present case. ( 10. ) FURTHER reliance is placed on a decision in the matter of Satya narayan Vs. Brij Gopal Mundra, AIR 1991 Patna 60, wherein it was held that-"where the defendant appeared but did not file written statement after being granted many adjournments and the judgment followed by a decree was passed, it could not be called an ex parte decree within the meaning of Order 9 Rule 13 in view of the amended provisions of Order 8 Rule 10 and hence there would be no need to fix any date for ex parte hearing. Therefore, the application under order 9 Rule 13 for setting aside an ex parte decree would not be maintainable as the decree passed was not an ex parte decree. " ( 11. ) IN the matter of Shahtilata Pattanaik Vs. Therefore, the application under order 9 Rule 13 for setting aside an ex parte decree would not be maintainable as the decree passed was not an ex parte decree. " ( 11. ) IN the matter of Shahtilata Pattanaik Vs. London Baptist Mission corporation and another, 2000 (11) Orissa Law Reporter 231, Orissa High Court has observed as under:- "in fact a decree passed under Order VIII Rule 10, CPC is worst than a decree passed in ex parte because in a case where the decree is passed in ex parte, Court has to record some sort of evidence to satisfy that plaintiff is entitled for a decree as prayed but in case where the decree is passed under Order VIII Rule 10, CPC, the decree is passed only because the defendant failed to file the written statement. " ( 12. ) KARNATAKA High Court had an occasion to consider the amended provision of Order VIII Rule 10 and Order XVII Rules2 an 3, CPC in the matter of M/s. Kuvarp Industries Vs. State Bank of Mysore, AIR 1985 Karnataka 77, which reads as under :- "5. Order 8 Rule 10, CPC as it stands amended by the Amendment act of 1976, reads as :-"procedure when party fails to present written statement called for by Court:-Where any party from whom a written statement is required under rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up. "rule 10 before it was amended reads as :-"where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. "the amendments carried out in Rule 10 are that the written statement required to be filed must be one under Order 8 Rule 1 or Rule 9. Then the next amendment introduced is that the word permitted has been used. "the amendments carried out in Rule 10 are that the written statement required to be filed must be one under Order 8 Rule 1 or Rule 9. Then the next amendment introduced is that the word permitted has been used. The unamended Rule 10 only gave discretion to the Court to pronounce a judgment while the amended section makes it mandatory for the Court to pronounce judgment against him. It further says that on the pronouncement of such judgment, a decree shall be drawn up. These words viz. , that "on the pronouncement of such judgment a decree shall be drawn up" are introduced by the amendment. It was not to be found in the old Rule 10. Formerly if a judgment was pronounced under order 8 Rule 10, it was treated as an appealable order and Order 43 Rule 1 (b) provided for an appeal. Order 43 Rule 1 (b) is repealed. Therefore on account of the appeal of Order 43, Rule 1 (b), the right of filing a Miscellaneous Appeal against the judgment pronounced under Order 8 Rule 10 is taken away. The simple repeal of such a valuable right must have some meaning. Now the amended Rule 10 speaks that "on the pronouncement of such judgment, a decree shall be drawn up" will have to be given some meaning especially in view of the taking away of the right of appeal provided by Order 43 Rule 1 (b ). The definition of decree given in Section 2 (2), CPC stated that a decree shall not include any adjudication from which an appeal lies as an appeal from an order. So any judgment pronounced under the unamended Rule 10 could not be followed by a decree within the meaning of Section 2 (2)because a Miscellaneous Appeal had been provided by Order 43 rule 1 (b ). Therefore, any judgment that was pronounced under the unamended Rule 10 only amounted to an order and therefore the right of appeal under Order 43 Rule 1 (b) had been provided. Therefore in view of the repeal of Order 43 Rule 1 (b) and in view of the specific use of the words "a decree shall be drawn up", it appears to me that the Legislature intended to provide rather better remedies to the party who suffered a decree passed under order 8 Rule 10, CPC. 6. Therefore in view of the repeal of Order 43 Rule 1 (b) and in view of the specific use of the words "a decree shall be drawn up", it appears to me that the Legislature intended to provide rather better remedies to the party who suffered a decree passed under order 8 Rule 10, CPC. 6. Order 17 Rule 3, CPC reads as :-"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". Therefore, Order 17 Rule 3, CPC contemplates two stages. One is if the parties are present and the other is if the parties are or any of them is absent. If the parties are present, then the Court will have to proceed to decide the suit forthwith. If the parties are or any of them is absent, then the Court will have to proceed only under Order 17 Rule 2, CPC. It is a case where the defendants were absent when the judgment was pronounced under Order 8 Rule 10, cpc. Therefore, it is Order 17 Rule 3 (b) that would be attracted to the facts of the present case. Order 17 Rule 2 reads as :-"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 9 or make such other order as it thinks fit. "therefore, if the judgment and decree are pronounced under order 8 Rule 10 (amended), then the party would have a right to proceed under Order 9 also. Then the question would arise whether the word hearing used in Rule 2, and Rule 3 has got a separate connotation. Order 8 of the CPC relates to the filing to the written statement, set off and counter claim. Then the question would arise whether the word hearing used in Rule 2, and Rule 3 has got a separate connotation. Order 8 of the CPC relates to the filing to the written statement, set off and counter claim. Rule 1 says that the defendant shall at or before the first hearing or within such time as the Court may permit a written statement of his defence. Therefore, the word hearing used in Order 8 Rule 1, CPC says that the stage of hearing starts from the moment the defendant puts in his appearance in the court after being served with summons. Therefore the word hearing used in Rule 2 and Rule 3 of Order 17, CPC also would have the same meaning. If it is so then any judgment or decree passed under Order 8 Rule 10 would clearly amount to a judgment and decree popularly called as ex parte judgment and ex parte decree. The word ex parte only means that pronounced in the absence of a party. It has not got any other meaning. If it. is so, then order 9 Rule 13, CPC would be applicable even to a case where a judgment and decree have been passed under Order 8 Rule 10, cpc. " ( 13. ) AFTER taking into consideration all the law available on the subject, it is crystal clear that after the amendment in CPC in the year 1976 whereby the right to Miscellaneous Appeal under Order 43 Rule 1 was taken, the application of the provisions under Order VIII Rule 10, CPC results in a decree not by admission but owing to the default of a defendant to file a written statement which in its real meaning and substance is only ex parte decree. ( 14. ) IN view of this, the revision petition stands allowed and the order dated 17-2-99 passed in M. A. No. 51/97 by I ADJ, Ratlam and also the order dated 28-4-91 passed by I Civil Judge Class I, Ratlam in MJC No. 4/95 are set aside with a direction to the Trial Court to dispose of the application on merits. ( 15. ) PARLIES are directed to remain present before the learned Trial court on 16-4-07. Learned Court below shall decide the application on merits within a period of two months. No order as to costs. Civil Revision allowed.