Decided on December 08,1900

Rai Radha Kisben Appellant
Collector Of Jaunpore Respondents


ROBERTSON, J. - (1.) TO this appeal from the High Court of Judicature for the North-Western Provinces, Allahabad, it is objected by the respondent that no appeal to Her Majesty in Council lies against the order complained of. For the due understanding of the question thus raised it is necessary briefly to trace the procedure in the suit.
(2.) THE suit was brought on March 10, 1892, before the Subordinate Judge at Benares, for the recovery of money alleged to be due under two bonds, executed by a person of whom the defendant Shankar Dat Dube was the legal representative. That defendant is now deceased, and is represented by the respondent. He appeared in the suit, and on May 17, 1895, filed a written statement with a list of documents. Into the nature of the questions raised by the plaint and the written statement it is unnecessary to enter, as the questions before their Lordships arise solely out of the part taken by the defendant at a certain stage of the procedure. It is sufficient to note that the issues settled between the appellant and Shankar Dat Dube were: (1.) Has the plaint been amended according to law? (2.) Is defendant No. 1 (Shankar Dat Dube) the heir of Rajah Harihar Dat? (3.) Is the deed of mortgage legally valid? Could Harihar Dat duly legally hypothecate the property? (4.) Is the deed of mortgage genuine? A fifth issue was settled, but it did not affect Shankar Dat Dube, but only certain other defendants. Prior to March 19, 1896, the case had repeatedly been before the Court, but had from time to time been postponed, and on January 31, 1896, an order was passed that the case should come on for decision on March 19, 1896. On each of these occasions the defendant Shankar Dat Dube was represented by a pleader. On March 19, 1896, it is recorded by the Presiding Judge that "Defendant No. 1 is to-day absent. No one appears for him. His pleader informs the Court that he has no instructions to proceed with the case. "The Court proceeded as in his absence, heard evidence for the plaintiff, and decided the issues, giving decree for the claim with costs.
(3.) ON April 9, 1896, Shankar Dat Dube applied to the Court under Section 108 of the Civil Procedure Code to set aside this decree, on the ground that neither the defendant, applicant, nor his general attorney had notice of the date fixed, and that for this reason he could not conduct the suit. The appellant filed a reply denying that the 108th section applied, and asserting that the defendant had notice. The application came before a different judge from Nil Madhab Boy, who had presided on March 19, 1896. The new judge, notwithstanding that his predecessor had recorded that the defendant in question was absent, that no one appeared for him, and that his pleader informed the Court that he had no instruction to proceed with the case, forthwith disallowed the application with costs. No opportunity was given to the applicant to satisfy the Court in terms of Section 108 that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the theory of the decision being that the applicant had in fact appeared, and that the decree was therefore not ex parte.;

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