1. This is an application in revision by a defendant in a suit which was originally fixed for hearing in the Court of the Additional Munsif of Farrakhabad on 8th January, 1945. On the application of the defendant it was adjourned to 29th January, 1945. The defendant was not present on that date and the suit was decreed ex parte against him. The order does not mention whether the ex parte decree was under O. 17, R. 2 or under O. 17, R. 3 of the CPC. The defendant applied to have the ex parte decree set aside taking the order of the Court to be one under O. 17, R. 2 of the CPC. He alleged certain facts in order to show that there was sufficient cause for his non-appearance on that date. The Munsif to whom the application was made for the setting aside of the ex parte decree has not recorded any finding on the point whether the defendant has succeeded in showing sufficient cause for setting aside the ex parte decree. He had dismissed the application on the ground that the decree passed on 29th January, 1945 was under O. 17, R. 3 and, therefore, the application for setting aside that decree did not lie. The defendant filed an appeal against this order to the District Judge of Farrukhabad who agreed with the view of the Munsif and dismissed the appeal.
2. It has been contended in revision before me that the decree should be treated to be one under O. 17, R. 2 and that the Munsif has refused to exercise a jurisdiction vested in him by law in refusing to entertain the application and decide it upon merits.
3. Order 17, R. 3 was amended by Rules made by this Court in the year 1926. In the year 1944, however, the amendments were deleted with the result that the original section as en-acted by the Legislature was restored. The rulings upon the interpretation of the amended O. 17, R. 2 are, therefore, not applicable to the decision of the present case. It has got to be decided according to the rulings which had interpreted the original O. 17, R. 3 as it was enacted by the Legislature. It was held by a Division Bench of this Court in Ganeshi Lal Har Narain v. Debi Das, 47 ALL. 140 : (A.I.R (12) 1925 ALL. 267) that
“where a Munsif passed an order decreeing, on an adjourned date, a suit against an absentee defendant, but omitting to state whether his order was made under R. 2 or R. 3 of O. 17 of the CPC, it must be taken that it was an order under O. 17, R. 2, and further that it was open to the High Court to revise the order of the Munsif dismissing defendant's application under O. 9, R. 13 inasmuch as the Munsif had refused to exercise a jurisdiction vested in him by law on the erroneous ground that the previous dismissal was under O. 17, Rule 3.”
4. In Ganeshi Lai's case, A.I.R (12) 1925 ALL. 267 : (47 ALL. 140) the unsuccessful defendant had gone up in appeal to the District Judge who had dismissed it on the ground that the original order was one under O. 17, R. 3. This ruling is fully applicable to the present case.
5. To the same effect is another decision of another Division Bench of this Court in Ram Adhin v. Barti Bharose, 47 ALL. 181 : (A.I.R (12) 1925 ALL. 182).
6. It is thus manifest that the learned Munsif has failed to exercise jurisdiction vested in him by law and his order cannot be sustained.
7. I therefore allow this application in revision, set aside the order of the Munsif dated 26th March, 1945 and direct that he should entertain the application and dispose of it according to law. It is obvious that the order of the Munsif having been set aside the order of the appellate Court affirming it automatically falls through. The costs here and hereafter shall abide the result.
8. Application allowed.