“A. Code of Civil Procedure Or.9 Rule 13 – Or. 8 Rule 10 – Suit decreed under Or.8 Rule 10 – Petition to set aside the decree under Or.9 Rule 13 is maintainable. Held : Defendant's application for time to file written statement was not granted by the Sub Judge and he pronounced the judgment against the Defendant as required under Order 8, Rule 10. On the strength of the documentary evidence the Sub Judge held that the plaint claim stood proved. Thus, it can be seen that the Sub Judge proceeded under Order 17, Rule 2. Rule 2 enables the Court 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. The legal position is that in a case where a decree was passed under Order 8, Rule 10 for failure of the Defendant to file written statement Order 9, Rule 13 petition is maintainable. Contention of the Plaintiff that the Defendant has not been set ex parte as per the judgment and therefore application under Order 9, Rule 13 is not maintainable and the only course open to it is to have filed appeal before the proper Court is not tenable.”
