M. Jagannadha Rao, C. J.
2. This appeal has been filed against the order of the learned single Judge dt. 16-5-1994 rejecting the application under O. IX, R. 13 of the Civil P. C. The learned single Judge thought that in view of the fact that the suit was disposed of under O. VIII, R. 10 of the Civil P.C. by an order dt. 6-5-1994, the provisions of O. IX, R. 13 are not attracted to the facts of the present case.
3. We are of the view that the order passed by the learned single Judge is not correct. In our opinion, the provisions of O. IX, R. 13 of the Civil P.C. are applicable to the order passed under O. VIII, R. 10. the authorities cited by the learned counsel for the
appellant are in point. Learned counsel for the respondent is unable to dispute the legal proposition of law laid-down in the aforesaid judgments. The impugned order is liable to be set aside.
4. A point has been raised by the learned counsel for the respondent that the appellant ought to have filed appeal against the decree as such. We are unable to accept the contention of the learned counsel for the respondent. It is not necessary for the appellant to file an appeal against the decree. Once an application under O. IX, R. 13 is maintainable, it is open to the appellant to apply for setting aside of the order passed under O. VIII, R. 10. The appeal is accordingly allowed and the impugned order dt. 16-5-1994 is set aside. The application filed under O. IX, R. 13 is restored to the file of the suit and the same will be disposed of in accordance with law. Parties are directed to appear before the learned single Judge on 19-9-1994.
5. Appeal allowed.