M V GEORGE Vs. S M R TRADERS

JUDGEMENT

(1.) Order 17, Rule 2 and Order 17, Rule 3 of the Civil P. C. as they stand after the Civil P. C, Amendment Act, 104 of 1976 are materially different from the corresponding provisions as they stood prior to the amendment. Order 17, Rule3 contemplated a judgment on the merits. But a judgment does not become a judgment on the merits falling under Order 17, Rule 3 merely because the judgment purports to be on the merits. The court may have, in the judgment discussed the issues in the ones, considered the evidence and decided the case on the merits. But nevertheless it will not be a disposal under Order 17, Rule 3 if the prerequisite for application of the rule is not satisfied. The party to whom time has been granted must be in default. If the case comes up not after grant of such time to the party, Order 17. Rule 3 will have no application The disposal will then be under Order 17, Rule 2 though it purports to be one on the merits. In such a case a defendant notwithstanding the purported disposal on the merits could seek to reopen the decree by an application under Order 9, Rule 13 of the C. P. C.

(2.) After the amendment in 1976, Order 17, Rule 2 stands with an explanation added to it. That explanation reads:

(3.) The above said amendment makes the earlier decisions on the distinction between Order 17, Rule 3 and Order 17 Rule 2 inapplicable after the amendment. The power of the court to proceed to decide the suit under Order 17, Rule 3 is restricted now to cases where the parties are present. If any of the parties happen to be absent the course open is to proceed under Order 17, Rule 2.