- (1.) THIS is an appeal by Chhagan Raj and others against the order of the Civil judge, Jodhpur, dismissing the application of the appellants for setting aside an ex parte decree.
(2.) THE facts which have led to this appeal are these. A suit was brought against band Mal, father of the appellants, on 9-8-1951. 21st September, 1951, was fixed for hearing. Band Mal was served, but did not appear on that day. A telegram was sent to the court by one Raghunath Mal praying for adjournment on the ground that Band Mal was ill. The court refused to adjourn the case on this telegram on the ground that it was not sent by a person who was a party to the suit. It took ex parte evidence on behalf of the plaintiffs on that date and an ex parte decree followed thereafter on 27-8-1951. Thereupon, an application was made on 11-10-1951, for setting aside the ex parte decree. The case of Band Mal was that he was ill on that day and could not, therefore, appear in court. The decree-holder respondents put Band Mal to proof of his allegation regarding illness. No evidence was, however, taken by the court. There was an affidavit by band Mal but that was filed suo motu and not on the order of the court and could not, therefore, be treated as evidence under Order 19 Rule 1, which requires an order of the court. The matter came up for disposal on 15-2-1952 and the following order was passed : "parties' counsel, present. Arguments heard. The application of the defendant is allowed on condition that the defendant pays Rs. 30/- as costs by 25-3-1952, and also deposit the decretal amount or gives security for the same. If he does so, the application would be accepted; otherwise the application would be considered dismissed. Put up on 253-1952. " The matter was considered again on 25-3-1952. On that date counsel for the defendant' stated that he was prepared to pay the costs, but was not prepared to deposit the decretal amount or give security for the same. Thereupon, the court ordered that the application for setting aside the ex parte decree be dismissed.
(3.) IT was this order of 25-3-1952, which has been brought in appeal before us. A preliminary objection has been taken that no appeal lies in this case. It is urged, in the first place, that the order of 15-2-1952 was not an order dismissing the application and an appeal is only provided under Order 43 Rule 1 (d) where an application for setting aside an ex parte decree is dismissed. In the second place, it is urged that in any case the appeal should have been from the order of 25-2-1952 and not from the order of 25-3-1952.;