S.D.Agarwala - (1.) THESE are two first appeals from order filed under Order 43 Rule 1 (t) of the Code of Civil Procedure. Since common questions of law arise in both these appeals both these appeals are being disposed of by a common judgment.
(2.) SUIT No. 13 of 1972 was filed by Mujibullah Khan. SUIT No. 59 of 1972 was filed by Sri Ehsan Ullah Khan. Both these suits were dismissed by the trial court. During the pendency of the suits, both Ehsan Ullah Khan and Mujibullah Khan have died and their heirs have been brought on record. Against the judgments passed in suit Nos. 13 of 1972 and 59 of 1972, two appeals were filed in the court below. The appeal arising out of suit No. 59 of 1972 was numbered as civil appeal No. 72 of 1972 and the appeal arising out of suit No. 13 of 1972 was numbered as civil appeal No. 71 of 1972. Both these appeals came up for hearing before the lower appellate court who on 30th July, 1973, dismissed both these appeals in default. Applications were made for restoration of the appeals to their original numbers under Order 41 Rule 19 CPC. Both the applications were dismissed by separate judgments by the Additional District Judge, Gorakhpur by order dated 31-8-1977. Against the judgments dated 31-8-1977 two appeals have been filed in this court. First Appeal From Order No. 469 of 1977 arises out of suit No. 13 of 1972 and First Appeal From Order No. 370 of 1.977 arises out of suit No. 59 of 1972. I have heard the learned counsel for the parties. Learned counsel for the appellants urged that the view taken by the court below that the application under Order 41 Rule 19 CPC is not maintainable is manifestly erroneous.
(3.) THE orders which were passed by the lower appellate court dismissing both the appeals were in the following terms : " THE appeal is dismissed in default with costs to the respondents. " On 30th July 1973 when the lower appellate court called on the appeals for hearing, the appellants' counsel made applications for adjournment which were rejected by the appellate court. Thereafter the counsel for the appellants did not argue the appeals and stated before the court that he had no instructions to argue the appeals. Since the counsel for the appellants withdrew from the appeals, the court passed the order which has been quoted above on the 30th of July, 1973.;