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Judgment
Abdur Rahim, J.—The question on this petition is whether the decree of the District Munsif in favour of the plaintiff came within the purview
of Rule 2 or Rule 3 Order XVII of the Civil Procedure Code; The question whether any particular decree comes within one or other of these two
rules is one not free from difficulty as there are conflicting rulings on the, subject. Even supposing that the ruling in Chqndramathi Ammal v.
Narayanmni Iyer 5 Ind. Cas. 23 which seems to be in conflict with the decision in Naganada Iyer v. Krishnamurti Aiyar 6 Ind. Cas. 233; (1910)
M.W.S. 213 ; 20 M.L.J. 535, Penamucha Anandaraju v. Nadimpalli Venkataraju 23 Ind. Cas. 519 and Enatulla v. Jiban Mohan Roy 23 Ind.
Cas. 769 ; 18 C.W.N. 775 ; 19 C.L.J. 535 is correct, it seems to me that the facta of the present case are distinguishable. The suit was instituted
in 1912. It is clear from the applications and the orders passed thereon, that the defendant applied for adjournment more than once and was given
time. Even in 1913, the plaintiff himself was examined and cross-examined, and one document was admitted in evidence as Exhibit I. But the
crucial dates are in November 1915. On the 16th November, the defendant asked for an adjournment and the suit was accordingly adjourned to
17th and it was made clear in the order that no further adjournment would be given. On the 17th, the defendant himself did not appear and his
Pleader who was present asked for further time to get proper instructions.'' But the application of the Pleader was refused and the suit was
proceeded with and several witnesses of the plaintiff were examined. Then it was adjourned to the 19th. On the 19th, the 1st defendant himself
appeared and so did his Pleader and he wanted an opportunity to cross-examine some witnesses of the plaintiff. That prayer was refused because
on the 17th the evidence in the case had been closed and the adjournment to the 19th was merely for a statement of the plaintiffs'' accounts being
filed. Judgment was pronounced on the 25th in favour of the plaintiff upon the evidence recorded in the easel In these circumstances it cannot be
said that the case was decided because of the default of appearance of the defendant. I think on the 17th the defendant did appear with his
Pleader. To my mind it would make no difference if the Pleader asked for further time in order to get proper instructions.'' It is not a case in which
the Pleader had no instructions. The same Pleader appeared in the case throughout. It seems to me that, all that he wanted on the 17th was to get
further time. I do not think that Rule 2 applies to the facts of this case and it is, in my opinion, governed by Rule 3. In that view the proper remedy
of the defendant was by way of an appeal against the decree and not by an application under Rule 13 of Order IX. The order of the District Judge
must be set aside and the order of the District Munsif re-stored with costs here and the Court below.