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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 of 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 Chandramathi Ammal v.
Narayanaswami Aiyar ILR (1910) M. 241 which seems to be in conflict with the decisions in Naganatha Aiyar v. Krishnamurthi Aiyar ILR (1911)
M. 97 Anandaraju v. Venkataraju (1911) 1 L.W. 123 and Enatulla Basunia v. Jiban Mohan Boy ILR (1913) C. 956 is correct, it seems to me
that the facts 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 Ex, 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 plaintiff''s accounts being filed. Judgment was pronounced on the 25th in favour of the
plaintiff upon the evidence recorded in the case, 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
this 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 9. The order of the District Judge must be set aside and the District Munsif restored with costs here and the
court below.