RAI RADHA KISBEN Vs. COLLECTOR OF JAUNPORE
Rai Radha Kisben
Collector Of Jaunpore
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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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