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Judgment
Cornish, J.—The appeal is by the first defendant against the order of the Subordinate Judge dismissing his application under Order 9, Rule
13, to set aside a decree. The application was made on the ground that the first defendant''s illness was a sufficient cause for his not being present
when the case was called on for hearing. The Subordinate Judge was not satisfied with the bona fides of this excuse or with the medical certificate
with which it was supported, and dismissed the application. We are not now concerned with the merits of the first defendant''s application, because
we think that the objection raised by the respondent''s learned Advocate that no petition lay under Order 9, Rule 13 is a good one. Order 9, Rule
13, has reference to decrees made ex parte, and it has to be seen whether the first defendant was, when the decree was made against him, ex
parte. In our opinion he was not. The suit had been posted to 3rd February, 1931, for trial. We are told that issues had been framed some months
earlier, and it appears from the judgment that one of the issues had been determined on the 16th January. The first hearing stage therefore was past
on the 3rd February. On that day the first defendant''s pleader filed an additional written statement, and on the application of his pleader the Court
framed a fresh issue. When that had been done, the pleader applied for an adjournment, alleging that the first defendant was not able to be present
on account of illness. When the Court refused that application, the pleader stated that he had no instructions, and the trial proceeded. On these
facts a question arises whether Rule 2 or Rule 3 of Order 17, governs the position. If what happened on the 3rd February, amounted to a failure of
the first defendant to appear he would be ex parte and would be entitled to apply under Order 9 to set aside the decree. But if the first defendant is
to be regarded as having appeared and to have made default in doing any of the acts mentioned in Rule 3, then the Rule enabled the Court to
proceed to decide the case on the materials before it, and the first defendant''s only remedy against the decree would be by way of appeal; see
Pichamma v. Sreeramulu ILR (1917) 41 Mad. 286 : 34 M.L.J. 24 (F.B.). We think that the first defendant did appear by his pleader on the 3rd
February. The acts of the pleader in filing an additional written statement and in applying to the Court for the framing of a fresh issue were acts
done by him in the conduct of the suit and towards the progress of the suit which had then been called on for hearing. In our judgment these acts
constituted an appearance. The position is quite different when, as in Lalta Prasad v. Nand Kishore (1899) ILR 22 All. 66 and Satish Chandra
Mukerjee v. Ahara Prasad Mukerjee ILR (1907) 34 Cal. 403 the Vakil had been merely instructed to apply for an adjournment. In such a case it
has been held that there has been no appearance. It has been suggested here that the only instruction given by the first defendant to his pleader was
to apply for an adjournment. But the evidence in our view gives no support to the suggestion. We concur in the opinion of Mr. Justice Wallace in
Arunachallam Chettiar v. Sivalingam Chettiar (1927) 26 L.W. 76 that a party who has appeared by his pleader cannot be allowed to claim to be
ex parte from the moment that his pleader when called upon to enter upon his defence, or, we may add, in anticipation of that stage of the trial, has
reported to the Court that he has no instructions. Consequently the first defendant was not ex parte, and therefore an application under Order 9 to
set aside the decree was not available to him. His application was dismissed on the merits. It ought to have been dismissed as misconceived. His
appeal against the order must be dismissed with costs.