ORDER
G.B. Patnaik, J.
1. Plaintiff is the petitioner and in this revision assails the order of the Additional District Judge in. Misc. Appeal No. 5/53 of 1989/88. The short question that arises for consideration is whether the defendant not having appeared and not having filed written statement though time was granted for the purpose and a judgment being pronounced on the averments made in the plaint in exercise of powers under Sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure, an application under Order 9 is at all entertainable. The learned trial Judge held such an application to be not maintainable, but on an appeal being carried, the learned Additional District Judge has held that an application under Order 9 is entertainable and hence the present revision.
2. The suit was one for specific performance of contract and the plaintiff prayed for specific performance of execution of the sale deed in respect of the suit properties on receipt of the balance consideration amount of Rs. 4,000/-. The defendants were set ex parte as they did not appear notwithstanding time being granted nor filed any written statement. The learned trial Judge delivered judgment on 25-4-1986 and granted the relief obviously exercising his power under Sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure. Defendant No. 2 filed an application under Order 9, Rule 13, read with Section 151 of the Code of Civil Procedure, which was registered as Misc. Case No. 165 of 1986. In the aforesaid misc. case, the plaintiff took the objection that the suit having been decreed under Order 8, Rule 5(2), Code of Civil Procedure, an application for restoration under Order 9 is not entertainable. The plaintiff also filed an objection that the application for restoration is grossly delayed and no sufficient cause has been shown for the delay in question. The learned Subordinate Judge did not decide the question of limitation, but being of the opinion that Order 9 has no application dismissed the application for restoration. In coming to the aforesaid conclusion, reliance was placed on the decision of the Delhi High Court in the case of The Traders’ Bank Ltd. v. Avtar Singh, AIR 1988 Delhi 55. Defendant No. 2 preferred an appeal against the aforesaid order of dismissal passed by the learned Subordinate Judge and the learned Additional District Judge who heard the appeal being of the opinion that the provisions of Order 9 would also apply to a case where the suit is disposed of under Sub-rule (2) of Rule 5 of Order 8, allowed the appeal. Hence the present revision.
3. Mr. Murty appearing for the petitioner contends that time having been granted to the defendant for filing his written statement and yet no written statement having been filed, the Court is entitled to pronounce judgment under Sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure and such a judgment and the consequential decree thereon would not amount to an ex parte decree within the meaning of Order 9 and, therefore, an application for setting aside an ex parte decree under Order 9 is not entertainable. He further contends that even if an application under Order 9, Rule 13 is entertainable, but in the case in hand there being gross delay in filing the said application and the Court having not applied its mind as to whether sufficient cause has been shown for condonation, the matter requires read judication by the learned trial Judge.
Mr. Misra appearing for the defendant-opposite party No. 1, on the other hand, contends that the expression “in any case in which a decree is passed ex parte” in Rule 13 of Order 9, is not susceptible of a narrow construction and is wide enough to cover all cases of ex parte decrees, no matter for what reason the ex parte decree has been passed and, therefore, Order 9 would also be applicable where the Court pronounces its judgment in exercise of power under Sub-rule (2) of Rule 5 of Order 13, Code of Civil Procedure, and consequently, the order of the learned Additional District Judge is wholly justified and does not require any interference. So far as the second contention of Mr. Murty is concerned, Mr. Misra submits that no doubt the application for condonation of delay has not been considered, but since by now considerable length of time has indeed passed, it would be meet and proper if this Court considers the same application and passes appropriate order thereon.
4. In view of the rival submissions at the Bar, the first question that crops up for consideration is whether pronouncing a judgment in exercise of power under sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure, and the consequential decree passed therein can be called to be an “ex pane decree” to which Order 9 would be attracted. The decision of the Delhi High Court on which Mr. Murty places reliance (supra), no doubt, supports his contention fully. But on considering the said decision, I am unable to persuads myself to agree with the reasonings advanced by the learned single Judge. Considering the language used in Rule 13 of Order 9, the learned single Judge of Delhi High Court has taken the view that it is only when either summons is not duly served or that the defendant was prevented by sufficient cause from appearing when the suit was called for hearing and a decree was passed thereafter, it can be said to be an ex parte decree and, therefore, when time is granted to the defendant for filing a written statement and he defaults in filing the written statement and the Court pronounces a judgment, the same would not be an “ex parte decree.” In my considered opinion, the aforesaid reasoning is wholly fallacious, inasmuch as the legislatures in the first part of Rule 13 of Order 9 have clearly indicated that in any case inn which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside. There is no justification on the part of the Court to give any restrictive meaning to the expression “in any case”. In the case of Abdul Aziz v. A. Raj Chhabra, AIR 1968 All 119, where a defence was struck out under Order 11, Rule 81 and then the suit proceeded ex parte and a decree was passed, an application under Order 9, Rule 13 was held to beentertainable. The expression “in any case in which a decree is passed ex parte against a defendant” obviously refers to a case in which a decree is, in fact, passed ex parte against a defendant. In the case of K. Jayaraman v. Glaxo Laboratories India Ltd., AIR 1981 Mad 258, it was held by the Madras High Court that a decree passed for defendant’s default in filing written statement is an ex parte decree covered by Order 9, Rule 13 and an application to set it aside under Order 9, Rule 13 is maintainable. To the same effect is the decision of the Karnataka High Court in the case of Kuvarp Industries, Bangalore v. State Bank of Mysore, AIR 1985 Kant 77. A Division Bench of the Kerala High Court considered this question directly in the case of M/s. M. Manick Peter v. K. Surendranathan, AIR 1988 Ker 161. On a thorough analysis of the different provisions of the Code of Civil Procedure, more particularly Order 9, Rule 13 and. Order 8, Rule 10, Code of Civil Procedure, the learned Judges observed that on the failure of the defendants and their counsel to appear in Court on the adjourned date of hearing of the suit, and its disposal under Order 8, Rule 10 is, therefore, to be treated as a disposal in accordance with Order 17, Rule 2 and an ex parte decree passed under Order 8, Rule 10, is not to be treated differently from any other decree ex parte liable to be set aside under Order 9, Rule 13, Code of Civil Procedure. I am in respectful agreement with the aforesaid view of the Kerala High Court. Then again, Sub-rule (2) of Rule 5 of Order 8, Code of Civil Procedure, does not contemplate decreeing of a suit, but it contemplates pronouncement of judgment on the basis of facts contained in the plaint. A decree is drawn up in such a case after pronouncement of judgment, under Rule 10 of Order 8. A decree passed under the Rule for defendant’s default in filing a written statement is none-the-less an ex parte decree coming within the purview of Order 9, Rule. 13 and, therefore, an application to set aside such a decree under Rule 13 of Order 9 is maintainable, In the premises, as aforesaid, I have no hesitation to come to the conclusion that the impugned decree in the case in hand is an ex parte decree and an application to set aside the same under Rule 13 of Order 9, Code of Civil Procedure, is entertainable. The learned Additional District Judge, therefore, rightly held that the application is maintainable and Mr. Murty’s contention on this score cannot be sustained.
5. So far as the second contention of Mr. Murty is concerned, I find ample force in the same. Even if an application under Rule 13 of Order 9 is maintainable, but the application having been filed beyond time, unless the delay is condoned and sufficient cause for such condonation is shown, the Court may reject the same. In the case in hand, the learned trial Judge has not passed any order on the application for condonation though it was earlier stated by him that it would be dealt with at the time of disposal of the application.
Thus, even though the application under Order 9, Rule 13 is maintainable, but the application for condonation of delay has not been disposed of by the learned trial Judge. The decree is of the year 1986. More than seven and half years have passed in the meantime. The question that crops up for my consideration is whether under these circumstances, it would be appropriate for this Court to remit the matter to the trial Judge for considering the question of condonation of delay in filing the application. From the record it transpires that the defendant who was working in the Proof and Experiment Establishment at Chandipur could not come to the Court as no leave was granted and the evidence further discloses that the advocate’s clerk took a wrong date with regard to the posting of the case, for which there was non-appearance on the date fixed. Taking these facts into consideration, and the period which has lapsed in the meantime, I do not think that interests of justice would demand remittance of the matter to the learned, trial Judge for considering the question of condonation of delay and therefore, the order of the learned Additional District Judge directing restoration of the suit does not require any interference by this Court in exercise of the revisional jurisdiction. But the direction with regard to payment of cost by the learned Additional District Judge requires modification. I would accordingly direct that defendant No. 2 (opposite party No. 1 in this revision) should pay the plaintiff or deposit in the trial Court for being paid to the plaintiff the cost of Rs. 500/- (five hundred) within three weeks from today and on such cost being deposited/paid, the suit will be restored and would be relegated to the stage where it was on the date the ex parte decree was passed, whereafter the learned trial Judge would dispose of the suit in accordance with law.
6. The Civil Revision is disposed of with the aforesaid observation and direction. There will, however, be no further order as to costs.