(1.) The order challenged in this appeal is one on an application filed by the defendants in the suit to restore the suit said to have been decided ex parte. The suit was on a hypothecation bond. Issues were raised in the suit on 14-2-1977. The case was adjourned to 26-2-1977 for production of records and witness schedule. On that day additional point was raised. Consequent upon the stay received from the High Court the suit was not posted thereafter. The case came up thereafter posted for trial in the special list on 16-11-1977. On that day it was adjourned to 25-11-1977 and in the meanwhile it was transferred to the District Court from the Sub Court. The case was adjourned for trial to 20-12-1977 and the B diary shows that from there it was adjourned to 22-12-1977, 5-1-1978, 27-1-1978 and 31-1-1978. All these do not appear to be adjournments at the request of the defendants. The diary does not indicate this and we should assume that the diary reflects the true state of affairs. We are not told otherwise. On 14-2-1978 the case was adjourned to 24-2-1978 and on 24-2-1978 the case was adjourned to 28-2-1978 and on that day the case was adjourned to 14-3-1978. These adjournments also do not appear to be on the application of any party. On 14-3-1978 the diary shows that one witness of the plaintiff was examined, defendants 1 to 7 were absent and the case was adjourned to 17-3-1978 for disposal on which date it was disposed of. Therefore on 14-3-1978 the case did not come up posted to that day on the application of the defendant. The court had not granted any time to defendants to do any particular act which the defendants had failed to do on that date. It is only when the court directs the doing of an act and the party fails to do that act a disposal of the case under O.17 R.3 is called for. In this connection we may refer to the decision in Arjun Singh v. Mohindra Kumar ( AIR 1964 SC 993 ). Therefore the disposal was not one under O.17 R.3 of the Code of Civil Procedure though it purported to be on the merits.
(2.) When the suit was decreed against the defendants they filed an application on 22-5-1978 to set aside the ex parte decree. That was rejected despite the fact that the plaintiff did not oppose the application and the court noticed the fact that the plaintiff did not so oppose.
(3.) The Court below mentioned in its order, limitation as a ground for dismissing the application. It is said that the petition was filed beyond 30 days and no exemption is sought in the petition. It is evident that 30 days time for filing an application under O.9 R.13 of the Code expired during vacation. On the opening day defendants filed the petition under O.9 R.13 of the Code. The Court should have noticed this before it observed that there was no application for excusing the delay. If an application was filed on the reopening day no question of delay arises.