G. C. Mathur, J. - (1.) This is an appeal against the order of the Civil Judge, Azamgarh, rejecting an application made by the appellants for setting aside his judgment by which he had allowed the appeal ex parte. The appellants who were respondents in the appeal before the Civil Judge filed the application under Order 41, Rule 19 though it could lie only under Order 41, Rule 21 of the Code of Civil Procedure.
(2.) One Padarath and opposite parties Nos. 1 to 4 filed a suit against the appellants in the Court of the Munsif Haveli, Azamgarh, for injunction and, in the alternative, for possession, in respect of a certain plot of land. The suit was dismissed by the Munsif and the plaintiffs filed an appeal. March 24, 1971 was fixed for the hearing of the appeal but, on that date, on the application of the appellants, it was adjourned for hearing to May 6, 1971. On the adjourned date of hearing, the counsel for the appellants filed an application for adjournment of the hearing of the appeal on the ground that appellant No. 1, Badri Pande, was ill and had not been able to attend the Court. On this application, the counsel for the plaintiff wrote that one of the respondents Bechan Pande (appellant No. 2 in this appeal) was present in court and that the application had been made merely to delay the hearing of the appeal. To this application, a telegram from Badri Pande from Kheri, was attached which stated that he was ill and which directed his counsel not to attend the Court. The appellate court rejected this application, heard the counsel for the plaintiffs and fixed May 24, 1971 for judgment. On May 21, 1971, the counsel for the appellants moved another application praying that a date for the hearing of the appeal may be fixed sometime in July. The application was again based on the ground that Badri Pande was ill. To this application, a medical certificate was annexed. The Court asked the counsel for the appellants to argue the appeal on behalf of the appellants but he declined to do so. The Court thereupon rejected the application. On May 24, 1971, the appellate court delivered judgment allowing the appeal, setting aside the judgment and decree of the Munsif and decreeing the suit. Thereafter on July 24, 1971, an application under Order 41, Rule 19 and Sec. 161 of the Code of Civil Procedure, was filed by the appellants for setting aside the ex parte judgment and decree. An application under Sec. 5 of the Limitation Act was also filed by the appellants for condoning the delay in filing the application for setting aside the ex parte judgment and decree. The lower court held that there was no sufficient cause made out for the delay in filing the application for setting aside the judgment and decree. It further held that since the appeal had been decided on merits, an application under Order 41, Rule 19 of the Code of Civil Procedure was not maintainable, that since the appellants had also filed a second appeal in this Court, the application under Order 41, Rule 19 of the Code of Civil Procedure had become infructuous and that, in any case, there was sufficient opportunity and time for the appellants to contact their lawyer and to argue the case, if they liked. It further observed that even if appellant No. 1 was ill, appellant No. 2 could very well have contacted the lawyer and got the appeal argued. In this view, the lower court rejected the application.
(3.) Learned counsel for the appellants has challenged all the findings of the court below. I will first deal with the questions whether the application under Sec. 5 was properly rejected and whether the application for setting aside the ex parte judgment and decree became in fructuous on account of the filing of a second appeal in this Court against the judgment and decree of the lower court.;