JUDGMENT: This Civil Revision has been filed by heirs of defendant No. 1 & 2 against the order dated 23.06.2009 passed by Additional District Judge, Fast Track Court No. IX, Giridih in Miscellaneous Appeal No. 13 of 2006 whereby and whereunder he dismissed the appeal and affirmed the order of Munsif in Miscellaneous Case No. 8 of 2001 dated 4.7.2006. 2. The fact of the case sans unnecessary particulars is that the Plaintiff/respondent/O.P. No. 1 filed Title suit No. 51 of 1989 for declaration of his title against the original defendants 1 to 6 and recovery of possession of the land pertaining to Khata No. 10, Plot No. 2247 area 0.34 dismals and land of Khata No. 17, Plot No. 2248 area 30 dismals and Plot No. 2240 area 19 dismals of village Jamtara, P.S.-Dumri, District-Giridih. It appears that in the said suit after receiving notice , defendant no. 1 and 2 appeared on 19.2.1990 and seek adjournment for filing written statement. It then appears that in spite of adjournment, defendant nos. 1 and 2 did not file written statement, accordingly the learned court below proceeded ex parte against them under Order VIII Rule 10 and an ex parte decree passed against them on 21.4.1998. It then appears that an Execution case filed for execution of the aforesaid decree and in that execution case petitioners/appellants were impleaded because the original defendant no. 1 died on 6.9.1998. It further appears that when petitioners/appellants avoided notice of execution case no. 11 of 1998, the court ordered for publication of notice in the Newspaper, accordingly the notice published in the daily Newspaper. It further appears that thereafter the O.P. No. 1/respondent/plaintiff put in possession of the suit lands. Thereafter petitioners/appellants filed miscellaneous case no. 8 of 2001 for setting aside the ex parte decree against the original defendant nos. 1 and 2 as per the provisions contained under Order IX Rule 13. It further appears that learned munsif, Giridih vide order dated 4.7.2006 after considering the facts of the case rejected the said application. Against the aforesaid order of Munsif, Miscellaneous appeal no. 13 of 2006 filed, which was also dismissed by Additional District Judge, FTC-IX, Giridih considering the facts of the case as well by holding that against an order passed under the provisions of Order VIII Rule 10, an application under Order IX Rule 13 is not maintainable. Against the aforesaid order of Munsif, Miscellaneous appeal no. 13 of 2006 filed, which was also dismissed by Additional District Judge, FTC-IX, Giridih considering the facts of the case as well by holding that against an order passed under the provisions of Order VIII Rule 10, an application under Order IX Rule 13 is not maintainable. Aforesaid order impugned in this revision application. 3. It is submitted by Sri V. Shivnath, Senior Advocate that the learned appellate court had committed illegality by holding that the appeal is not maintainable because the original miscellaneous application under Order IX Rule 13 is not maintainable against an order passed under the provisions of Order VIII Rule 10. It is submitted that it has been held by Hon'ble Kerala High Court in A.K.P. Haridas Vs. A. Madhvi Amma [ AIR 1988 Kerla 304] that any decree passed under the provisions of Order VIII Rule 10 for not filing written statement is an ex parte decree and therefore an application under Order IX Rule 13 is maintainable. It is further submitted that defendant no. 1 was suffering from tuberculosis , thus she was not able to attend court till 14.01.1995 when she died. It is further submitted that defendant no. 2 was mentally ill and he is living life of vagabond and because of that he could not contested title suit. It is submitted that the petitioners had shown sufficient cause which prevented defendant nos. 1 and 2 from contesting the case by filing written statement, but the courts below had wrongly rejected the prayer of petitioners for setting aside the ex parte decree. Accordingly, it is submitted that the impugned order cannot be sustained. 4. On the other hand, Sri Ram Subhag Singh, Advocate appearing for opposite party/respondent/ plaintiff submits that Patna High Court in Satyanarayan Sah Vs. Brij Gopal Mundra reported in 1990 (2) BLJR 1301 decided that decree passed under the provision of Order VIII Rule 10 is not an ex parte decree, therefore an application for setting aside the said decree , under Order IX Rule 13 is not maintainable. Sri Singh further submits that a similar view was taken by a Single Judge of Delhi High Court in Traders Bank Limited Vs. Avtar Singh reported in AIR 1988 Delhi 55. Sri Singh further submits that a similar view was taken by a Single Judge of Delhi High Court in Traders Bank Limited Vs. Avtar Singh reported in AIR 1988 Delhi 55. It is further submitted that even assuming for the sake of argument that an application under Order IX Rule 13 is maintainable for setting aside a decree passed under Order VIII Rule 10 then also since petitioners had not shown any sufficient cause which prevented defendant no. 1 and 2 from appearing and filing written statement, the impugned order not required to be interfered with. It is submitted that save and except the averments made in the application filed by petitioners under Order IX Rule 13 as well as oral evidence there is absolutely no documentary evidence to show that defendant no. 1 was suffering from tuberculosis from 1990 to the date of decree I.e. 21.4.1998. It is also submitted that there is no certificate filed by the petitioners or defendants to show that defendant no. 2 was mentally ill. It is submitted that even in the vakalatnama it was not mentioned that defendant no. 2 was suffering from mental illness. Under the said circumstances, the findings given by the courts below, which are findings of fact, cannot be interfered in this civil revision. Accordingly, he submits that there is no illegality in the impugned judgment of appellate court which require any interference by this Court. 5. Having heard the submissions, I have gone through the provisions of law as well as various judgments cited by the parties. It has been held by Patna High Court in Satyanarayan Sah Vs. Brij Gopal Mundra reported in (1990) 2 BLJR 1301 that the application filed on behalf of defendant under Order IX Rule 13 was not maintainable as the decree passed under Order VIII Rule 10 is not an ex parte decree within the meaning of Order IX. 6. At this stage it will be appropriate to examine provisions of Order IX Rule 13 of CPC, which reads as follows:- 13. 6. At this stage it will be appropriate to examine provisions of Order IX Rule 13 of CPC, which reads as follows:- 13. Setting aside decree ex parte against defendant._ 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:....... 7. On plain reading of Order IX Rule 13 it is clear that same is applicable in other cases also where the court passes ex parte decree in the event of default of party for non compliance of its order. On examination of provisions contained under Order IX Rule 13, it manifests that there is no indication in it to show that the said provisions are applicable only to cases where an ex parte decree is passed after observing the procedure under Order IX Rule 6 of the CPC. Indeed, the opening words of Order IX Rule 13 CPC would exclude such a narrow interpretation. The use of words in Order IX Rule 13 CPC “ in any case in which a decree is passed ex parte”( emphasis provided) is wide enough to cover all cases of ex parte decree no matter for what reason such an ex parte decree has been passed. Thus in the absence of any restriction with regard to applicability of Order IX Rule 13 CPC it is not possible to construe that the provisions of Order IX Rule 13 CPC will become applicable only when an ex parte decree is passed after following the provisions of Order IX of CPC. 8. Thus in the absence of any restriction with regard to applicability of Order IX Rule 13 CPC it is not possible to construe that the provisions of Order IX Rule 13 CPC will become applicable only when an ex parte decree is passed after following the provisions of Order IX of CPC. 8. In “Satya Narayan Sah Case” the learned Single Judge of Patna High Court at para 4 held that:-“ The application filed on behalf of the defendant under Order IX Rule 13 was therefore, not maintainable as the decree passed in the present case was not ex parte decree within the meaning of Order IX....” Thus, it is clear that learned Single Judge concluded in that case under the assumption that an application under Order IX Rule 13 will lie only in cases where ex parte decree passed after following the provisions of Order IX. With great respect to learned Single Judge of Patna High Court it stated that he came to aforesaid conclusion without considering the scope and applicability of provision of Order IX Rule 13 specifically the opening words used therein. Thus I am not in agreement with the aforesaid view taken in “ Satya Narayan Sah Case”. 9. So far the decision of Delhi High Court relied by learned counsel for opposite party in Trader Bank Limited V/s Awtar Singh reported in AIR 1988 Delhi 55 is concern, it is worth mentioning that a Division Bench of Delhi High Court in Gujrat Co-operative seeds growers Federation V/s Smt. Ramesh Kanta Jain AIR 1994 Delhi 367 held that an application under Order IX Rule 13 for setting aside an ex parte decree passed under Order VIII rule 10 is maintainable. Thus the judgment relied by learned counsel for opposite party, which is a judgment passed by Single Judge, no more continues to hold field. 10. It is worth mentioning that Patna High Court in Sri Sri 108 Narashing Bhagwan Thakurbari Vs. Tej @Tek Narain Singh reported in 2000 (3) BLJ 268 had differed from its earlier view taken in “Satya Narayan Sah Case” after considering various judgments pronounced by other High Courts and concluded that an application under Order IX Rule 13 CPC is maintainable for setting aside a decree passed under Order VIII Rule 10. 11. In the instant case order passed by learned Munsif , Giridih reveals that when defendant no. 11. In the instant case order passed by learned Munsif , Giridih reveals that when defendant no. 1 and 2 had not filed written statement, the court vide order dated 3.7.1990 proceeded against them ex parte and finally by passing judgment dated 21.4.1998 decreed the suit. It is worth mentioning that under Order VIII Rule 10 CPC , the court has two options when defendant failed to file written statement as required under Rule 1 or Rule 9 of Order VIII. The first option is to pronounce judgment at once which will follow by a decree and second option is that the court may make such other order in relation to the suit as it think fit. As noticed above, in the instant case, the court adopted second option and had ordered that it will proceed ex parte against defendant nos. 1 and 2. Thus in the instant case the learned court proceeded ex parte against defendant nos. 1 and 2 and finally passed ex parte decree against them. 12. It is worth mentioning that Kerala, Karnatka, Andhra Pradesh, and Orissa High Courts in AIR 1988 Kerala 161, AIR 1985 Kant 77, AIR 1990 Andhra 69 and AIR 1995 Orissa 45 respectively have held that a decree passed under Order VIII Rule 10 CPC is an ex parte decree and for setting it aside an application under Order IX Rule 13 is maintainable. 13. Thus I find that conclusion of the appellate court that an application under Order IX Rule 13 for setting aside a decree passed under Order VIII Rule 10 is not maintainable, therefore, appeal is also not maintainable , is not legal, hence, cannot be sustained. 14. Now I am proceeding to consider as to whether the petitioners made out a case for setting aside of ex parte decree passed in the instant case? Provisions contained in Order IX Rule 13 shows that a court can set aside an ex parte decree in two circumstances (I) if defendant could not appear in the case due to non service of summon or (ii) defendant was prevented by sufficient cause from appearing in the court when the case was called for hearing. 15. In the instant case admittedly summons served upon defendant nos. 1 and 2 and they appeared in the suit on 19.2.1990 and filed petition for adjournment for filing written statement. 15. In the instant case admittedly summons served upon defendant nos. 1 and 2 and they appeared in the suit on 19.2.1990 and filed petition for adjournment for filing written statement. Thus first ground for setting aside the ex parte decree is not available in this case. It is however stated , for the first time in the application under Order IX Rule 13, that defendant no. 1 was suffering from tuberculosis and she remain ill till 14.1.1995 on which date she died. It is also stated that defendant no. 2 was suffering from mental illness and was leading a vagabond life. It is also stated that in fact defendant no. 1 was the pairvikar of defendant no. 2. Both the courts below after considering the material available on record had disbelieved aforesaid statements made by the petitioners, because no document filed in support of illness of defendant no. 1 for such a long period and also there is no documentary evidence to show that she was bed ridden since 1990. The courts below had also given finding that no document filed to show that defendant no. 2 was suffering from mental illness. Learned Munsif had also given finding that in the vakalatnama filed by defendant no. 2 in Title Suit No. 51 of 1989, it is not mentioned that defendant no. 2 was mentally ill and he was represented through his next friend defendant no. 1. Accordingly, both the courts below after considering the facts concluded that the petitioners have not shown sufficient cause which prevented defendant nos. 1 and 2 from appearing and filing written statement as directed by the Court. Accordingly, both the courts below had dismissed the application and appeals after considering the facts of the case and I find no illegality in the said findings. 16. In view of discussions made above, part of the order of learned appellate court by which it held that appeal is not maintainable is set aside. However, I find no illegality in the orders of courts below by which they held that petitioner did not make out a case for setting aside ex parte decree. This Civil Revision is accordingly dismissed.